Federal Courts Clarify Reasonable-Accommodation Standards

The National Law Review recently published an article, Federal Courts Clarify Reasonable-Accommodation Standards, written by Alan M. Koral and Andrea Lewis with Vedder Price:

The extent of an employer’s duty to reasonably accommodate an employee with a disability under the Americans with Disabilities Act (ADA) is not always clear. Indeed, when the requested accommodation involves a leave of absence or the transfer to a different position, employers are often unsure what the law requires of them. A series of recent decisions from the Seventh and Tenth Circuits, however, have addressed the limitations and obligations facing employers presented with such requests for accommodation.

Leaves of Absence as a Reasonable Accommodation

Few questions vex employers more than what length of time is reasonable when a disabled employee requests a leave of absence. The United States Court of Appeals for the Tenth Circuit (Colorado, Kansas, Oklahoma), in Robert v. Board of County Commissioners of Brown County, 691 F. 3d 1211 (10th Cir. 2012), has shed some light on this issue that should help employers in deciding how to respond to employee leave requests under the ADA. The plaintiff, Ms. Robert, worked for Brown County supervising felony offenders. The essential functions of her job required that she perform many duties outside of her office such as performing drug screenings, ensuring compliance with court orders, testifying in court, and other “considerable fieldwork” including site visits under potentially dangerous circumstances. Robert was diagnosed with sacroiliac joint dysfunction, and because of severe pain in her back and hips eventually she could work only from home. Thus, she was unable to visit offenders, supervise drug and alcohol screenings or testify in court.

Following a surgery to treat her joint dysfunction, Robert exhausted her FMLA and sick and vacation leaves, but she still could not return to work. Neither she nor her doctor informed her employer as to when she could resume her job duties. Since she could not perform her job duties, the County terminated Robert’s employment. Among other claims, Robert alleged that her termination constituted discrimination under the ADA. The court disagreed. The court accepted that site visits and other out-of-office work were essential functions of Robert’s employment, but it stated that she would still be qualified to perform her job if she could have performed those duties with reasonable accommodation. The only possible reasonable accommodation in this case, however, would have been a leave of absence.

The court noted that there are two limits on the bounds of reasonableness for a leave of absence: (1) the employee must provide the employer an estimated date for when she can resume her essential duties, and (2) the leave request must assure the employer that the employee can perform the essential functions of her position in the “near future.” Though the court did not define “near future,” it cited to a case stating that a six-month leave request was too long to constitute reasonable accommodation. Here, Robert never provided any estimate as to when she could resume her fieldwork. Therefore, the only accommodation that would have allowed Robert to perform the essential functions of her position was an improper indefinite reprieve from her fieldwork functions. Thus, since Robert was not qualified to perform her duties, her discrimination claim failed.

Transfers to a Different Position as a Reasonable Accommodation

On September 7, 2012, the Seventh Circuit in EEOC v. United Airlines overruled two of its prior decisions (EEOC v. Humiston-Keeling (2000) and Mays v. Principi (2002) that together stood for the principle that employers could hire the most qualified applicant for a position, even if that meant passing over a disabled employee seeking the position because his disability precluded him from performing the essential functions of his current position. Going forward, employers in the Seventh Circuit will now be required to offer that vacant position to the disabled employee, unless it can show that doing so creates an undue hardship that renders mandatory reassignment unreasonable.

The dispute in United Airlines centered around a set of “reasonable accommodation” guidelines that the company used when evaluating transfer requests involving disabled employees. United’s guidelines provided that the transfer process was a competitive one, and that employees requesting a transfer as an accommodation would not automatically be placed into qualifying vacant positions. Instead, the disabled employee would receive preferential treatment, which included a “guaranteed” interview for the position and priority over similarly qualified applicants. Under these guidelines, however, a non-disabled applicant would receive the job if he or she was more qualified than a disabled employee seeking the accommodation.

In abandoning the standard it had followed since 2000, the Seventh Circuit concluded that the “ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.” While the existence of a seniority rule mandated by a collective bargaining agreement will likely satisfy the undue-hardship requirement, not all such provisions are created equal, and their language should be parsed before rejecting a transfer request out of hand in such a setting. In the future, employers in the Seventh (and Tenth or Washington, DC) Circuits may no longer rely on a “best applicant” policy when making decisions about transferring disabled employees to vacant positions.

The Employee’s Role in Requesting a Reasonable Accommodation

In yet another noteworthy decision, the Seventh Circuit held that a university was not liable for failing to accommodate a professor’s mental disorder, where the university reasonably tried to fulfill a request for office reassignment but the employee did not cooperate. In Hoppe v. Lewis University, 692 F.3d 833 (7th Cir. 2012), Elizabeth Hoppe requested that her office be relocated to accommodate her adjustment disorder. Both the initial letter that Hoppe presented from her doctor and a follow-up letter failed to specify a suitable campus location for Hoppe or the particular stressors that necessitated Hoppe’s relocation. Nevertheless, the university offered Hoppe four different office options, one of which she accepted but never used; she refused the remaining offices because they were in the same building as individuals whom she alleged heightened her anxiety, but her physician never specified a change of buildings or any location information at all. The court emphasized:

An employer can take no solace in its failure to engage in this process in good faith if what results is an unreasonable or inappropriate accommodation offer. And an employee who fails to uphold her end of the bargain – for example, by not “clarifying the extent of her medical restrictions” – cannot impose liability on the employer for its failure to provide a reasonable accommodation.^[1]

In finding in favor of the university, the Seventh Circuit noted that the university offered Hoppe several options to change offices, despite having no specific details from her doctor about what steps were necessary to reasonably accommodate her disability. Further, the university had asked Hoppe’s doctor for specific information several times, to no avail. Therefore, the university did its part to participate in good faith in the ADA-required interactive process, and there was no evidence it did not offer Hoppe a reasonable accommodation.

Lessons for Employers

First, these cases emphasize that an employer need not shoulder the entire burden when trying to reasonably accommodate an employee with a disability; the employee has responsibilities as well. As noted in Hoppe, an employer need not offer an employee the precise accommodation he or she requests, if the employee does not clarify the extent of his or her medical restrictions. The employer must participate in good faith in an interactive process under the ADA to find a reasonable accommodation, but the employer’s obligation runs only so far. If an employee’s physician does not specify the employee’s restrictions or what type of accommodation is necessary, following up with the physician and working with the employee to find alternative options should protect an employer from liability if the employee later argues that the offered accommodations were unreasonable.

Second, an employer is not required to provide an open-ended leave of absence if an employee requests such an absence as an accommodation. Under Robert’sanalysis, an indefinite absence, especially when there is no assurance that the employee will be able to perform the essential functions of his or her position, is unreasonable as a matter of law. Under these circumstances, once an employee has exhausted other types of leave, if she cannot provide an estimate of when she can resume the essential duties of her position, a court is likely to uphold an employer’s decision to terminate her. The employee does not need to return to work at full capacity, but the employee must be able to perform the duties of her position with reasonable accommodation under the ADA.

Third, employers in the Seventh Circuit must now reassign qualified disabled employees who can no longer perform their original jobs to vacant positions, unless the employer can establish the existence of special circumstances that demonstrate undue hardship. While the seniority provisions of a collective bargaining agreement should satisfy this requirement, it remains to be seen what other special circumstances will suffice going forward. Employers should vigorously explore the possibility of reassignment with disabled employees and be sure that any positions discussed with and/or offered to the employee are documented.

Finally, these cases further emphasize the importance of detailed job descriptions. With or without accommodation, an employee must be able to perform the essential functions of his or her job. If the employer can pinpoint the essential functions of a job, both the employer and the employee will have an easier time engaging in the required interactive process for establishing reasonable accommodations. Further, in the event an employee cannot perform the essential functions of a job, an employer is further protected in a lawsuit if it has articulated the essential functions of a position ahead of time.If you have any questions about this article or the ADA in general, please contact Alan Koral at +1 (212) 407 7750, Andrea Lewis at +1 (312) 609 7739, or any other Vedder Price attorney with whom you have worked.

_{[1] Id. at 840 (citations omitted)}

NLR Fall 2012 Law Student Writing Competition

The NLR Law Student Writing Competition offers law students the opportunity to submit articles for publication consideration on the NLR Web site. No entry fee is required. Applicants can submit an unlimited number of entries each month.

Winning submissions will be published according to specified dates.
Entries will be judged and the top two to four articles chosen will be featured on the NLR homepage for a month. Up to 5 runner-up entries will also be posted in the NLR searchable database each month.
Each winning article will be displayed accompanied by the student’s photo, biography, contact information, law school logo, and any copyright disclosure.
All winning articles will remain in the NLR database for two years (subject to earlier removal upon request of the law school).

Transitional Program for Covered Business Method Patents under the America Invents Act

Transitional Program for Covered Business Method Patents under the America Invents Act, an article by Lee Davis and Gregory L. Porter with Andrews Kurth LLP was recently featured in The National Law Review:

The Leahy-Smith America Invents Act (AIA) includes expanded procedures for challenging patents administratively rather than through the courts. One of the new post-grant review procedures for challenging covered business method patents went into effect on September 16, 2012.

Post-grant review of covered business method patents is available to challenge any patent, even patents issued before the effective date of the AIA, and is handled by the newly created Patent Trial and Appeals Board (PTAB). For purposes of post-grant review, a “covered business method” (CBM) patent claims a method or corresponding apparatus for performing data processing or other operations used in practice, administration, or management of a financial product or service, except that the term does not include patents for technological inventions. Whether a patent claims a “technological invention” is considered on a case-by-case basis, and a technological invention is defined as claimed subject matter that as a whole recites a technological feature that is novel and unobvious over the prior art and solves a technical problem using a technical solution.

There are likely to be patents that fall on the outskirts of the definition of a covered business method patent. The Final Rules promulgated by the U.S. Patent and Trademark Office provide some guidance. For example, the Rules suggest that CBM patents subject to post-grant review are anticipated to be typically classified in Class 705 of the United States Patent Classification System. Class 705 is the classification for patents directed to data processing in the following areas: financial, business practice, management or cost/price determination. While the Rules specifically refer only to Class 705, they make clear that patents in other classifications, which fit the definition of business method patents, may also be subject to post-grant review.

To institute post-grant proceedings for CBM patents, the person challenging the patent must have been sued for infringement or have been charged with infringement under the patent. If post-grant review is sought, a party may seek a stay of any pending civil patent infringement action. In considering whether to grant the stay, the district court decides whether a stay will simplify the issues in question and streamline the trial, whether discovery is complete or a trial date has been set, whether a stay would prejudice the nonmoving party or present a tactical advantage to the moving party, and whether a stay will reduce the burden of litigation on the parties and the court. A party may take an immediate interlocutory appeal to the U.S. Court of Appeals for the Federal Circuit for de novo review of a district court’s decision. Affording immediate interlocutory appeal of the district court’s decision indicates the AIA’s strong preference for use of the new post-grant review proceedings for covered business method patents. Therefore, absent unusual circumstances it appears that most lawsuits in their early stages will be stayed.

Institution of post-grant review proceedings requires that the petitioner demonstrate that it is more likely than not that at least one of the claims challenged is unpatentable. If instituted, a trial proceeds only on the challenged claims for which the threshold standard has been met. The Board will enter a Scheduling Order concurrent with a decision to institute a trial that sets due dates for taking action and accounts for the complexity of the proceeding. The Scheduling Order sets out a sequenced discovery process where each party is provided respective discovery periods, beginning with the patent owner. The sequenced discovery is to allow meaningful discovery before motions and oppositions are submitted during trial. Thus, discovery before the PTAB is focused on what the parties reasonably need to respond to the grounds raised by their opponent. The types of discovery available under the Federal Rules of Civil Procedure can be sought by the parties, and requests for such discovery are considered under a “good cause” standard. The clear intent here is to reduce the scope and amount of discovery and its attendant costs from that in a district court case.

Each party to the proceeding is afforded an opportunity to present their case before at least three members of the PTAB at an oral hearing. Prior to any decision by the Board on the merits, the parties may agree in writing to terminate the proceedings. The PTAB will enter a final written decision not more than a year from the date trial was instituted, except that the time may be extended up to six months for good cause. A party dissatisfied with the PTAB’s final written decision may file a request for rehearing and/or an appeal to the U.S. Court of Appeals for the Federal Circuit.

Several petitions challenging a number of business method patents have already been filed since the new post-grant review procedures took effect. Based on today’s count, the PTAB Patent Review Processing System (PRPS) shows 10 pending petitions for post-grant review of alleged CBM patents. It is interesting to note that all of the patents are classified in Class 705, therefore we are unlikely to have an early ruling on a patent outside of Class 705. While the first petition was filed on September 16, 2012, as of about one month later, no trial has been instituted or scheduling orders entered for even the oldest petition. Thus, answers to what patents will be considered, what discovery will be sought and allowed, and the time to trial under these rules remain open.

In sum, only time will tell if the new post-grant procedures provide a more efficient, less costly manner of challenging business method patents.

ABA Winter Institutes – January 23-25 and February 14-15, 2013

The National Law Review is pleased to bring you information about the upcoming ABA Winter CLE Institutes:

ABA National Institutes

Learn and network at these live in-person seminars that draw lawyers from across the nation. January National Institutes include the 2013 E-Discovery and Information Governance, January 23-25 in Tampa, FL. February National Institutes include the 2013 Gaming Law Minefield, February 14-15 in Las Vegas, NV.

Private Equity Fund Is Not a “Trade or Business” Under ERISA

An article, Private Equity Fund Is Not a “Trade or Business” Under ERISA, written by Stanley F. Lechner of Morgan, Lewis & Bockius LLP was recently featured in The National Law Review:

District court decision refutes 2007 Pension Benefit Guaranty Corporation opinion letter and could provide potential clarity to private equity firms and private equity funds in determining how to structure their investments.

In a significant ruling that directly refutes a controversial 2007 opinion by the Pension Benefit Guaranty Corporation (PBGC) Appeals Board, the U.S. District Court for the District of Massachusetts held in Sun Capital Partners III, LP v. New England Teamsters & Trucking Industry Pension Fund that a private equity fund is not a “trade or business” under the Employee Retirement Income Security Act (ERISA) and therefore is not jointly and severally liable for millions of dollars in pension withdrawal liability incurred by a portfolio company in which the private equity fund had a substantial investment.^[1] This ruling, if followed by other courts, will provide considerable clarity and relief to private equity funds that carefully structure their portfolios.

The Sun Capital Case

In Sun Capital, two private equity funds (Sun Fund III and Sun Fund IV) invested in a manufacturing company in 2006 through an affiliated subsidiary and obtained a 30% and 70% ownership interest, respectively, in the company. Two years after their investment, the company withdrew from a multiemployer pension plan in which it had participated and filed for protection under chapter 11 of the Bankruptcy Code. The pension fund assessed the company with withdrawal liability under section 4203 of ERISA in the amount of $4.5 million. In addition, the pension fund asserted that the two private equity funds were a joint venture or partnership under common control with the bankrupt company and thus were jointly and severally liable for the company’s withdrawal liability.

In response to the pension fund’s assessment, the private equity funds filed a lawsuit in federal district court in Massachusetts, seeking a declaratory judgment that, among other things, they were not an “employer” under section 4001(b)(1) of ERISA that could be liable for the bankrupt company’s pension withdrawal liability because they were neither (1) a “trade or business” nor (2) under “common control” with the bankrupt company.

Summary Judgment for the Private Equity Funds

After receiving cross-motions for summary judgment, the district court granted the private equity funds’ motion for summary judgment. In a lengthy and detailed written opinion, the court made three significant rulings.

First, the court held that the private equity funds were passive investors and not “trades or businesses” under common control with the bankrupt company and thus were not jointly and severally liable for the company’s withdrawal liability. In so holding, the court rejected a 2007 opinion letter of the PBGC Appeals Board, which had held that a private equity fund that owned a 96% interest in a company was a trade or business and was jointly and severally liable for unfunded employee benefit liabilities when the company’s single-employer pension plan terminated.

A fundamental difference between the legal reasoning of the court in the Sun Capital case compared to the reasoning of the PBGC in the 2007 opinion is the extent to which the actions of the private equity funds’ general partners were attributed to the private equity fund. In the PBGC opinion, the Appeals Board concluded that the private equity fund was not a “passive investor” because its agent, the fund’s general partner, was actively involved in the business activity of the company in which it invested and exercised control over the management of the company. In contrast, the court in Sun Capital stated that the PBGC Appeals Board “misunderstood the law of agency” and “incorrectly attributed the activity of the general partner to the investment fund.”^[2]

Second, in responding to what the court described as a “creative” but unpersuasive argument by the pension fund, the court concluded that the private equity funds did not incur partnership liability due to the fact that they were both members in the affiliated Delaware limited liability company (LLC) that the funds created to serve as the fund’s investment vehicle in purchasing the manufacturing company. Applying Delaware state law, the court stated that the private equity funds, as members of an LLC, were not personally liable for the liabilities of the LLC. Therefore, the court concluded that, even if the LLC bore any responsibility for the bankrupt company’s withdrawal liability, the private equity funds were not jointly and severally liable for such liability.

Third, the court held that, even though each of the private equity funds limited its investment in the manufacturing company to less than 80% (i.e., 30% for Fund III and 70% for Fund IV) in part to “minimize their exposure to potential future withdrawal liability,” this did not subject the private equity funds to withdrawal liability under the “evade or avoid” provisions of section 4212(c) of ERISA.^[3] Under section 4212(c) of ERISA, withdrawal liability could be incurred by an entity that engages in a transaction if “a principal purpose of [the] transaction is to evade or avoid liability” from a multiemployer pension plan. In so ruling, the court stated that the private equity funds had legitimate business reasons for limiting their investments to under 80% each and that it was not clear to the court that Congress intended the “evade or avoid” provisions of ERISA to apply to outside investors such as private equity funds.

Legal Context for the Court’s Ruling

Due to the distressed condition of many single-employer and multiemployer pension plans, the PBGC and many multiemployer pension plans are pursuing claims against solvent entities to satisfy unfunded benefit liabilities. For example, if a company files for bankruptcy and terminates its defined benefit pension plan, the PBGC generally will take over the plan and may file claims against the company’s corporate parents, affiliates, or investment funds that had a controlling interest in the company, or the PBGC will pursue claims against alleged alter egos, successor employers, or others for the unfunded benefit liabilities of the plan that the bankrupt company cannot satisfy.

Similarly, if a company contributes to a multiemployer pension plan and, for whatever reason, withdraws from the plan, the withdrawing company will be assessed “withdrawal liability” if the plan has unfunded vested benefits. In general, withdrawal liability consists of the employer’s pro rata share of any unfunded vested benefit liability of the multiemployer pension plan. If the withdrawing company is financially unable to pay the assessed withdrawal liability, the multiemployer plan may file claims against solvent entities pursuant to various legal theories, such as controlled group liability or successor liability, or may challenge transactions that have a principal purpose of “evading or avoiding” withdrawal liability.

Under ERISA, liability for unfunded or underfunded employee benefit plans is not limited to the employer that sponsors a single-employer plan and is not limited to the employer that contributes to a multiemployer pension plan. Instead, ERISA liability extends to all members of the employer’s “controlled group.” Members of an employer’s controlled group generally include those “trades or businesses” that are under “common control” with the employer. In parent-subsidiary controlled groups, for example, the parent company must own at least 80% of the subsidiary to be part of the controlled group. Under ERISA, being part of an employer’s controlled group is significant because all members of the controlled group are jointly and severally liable for the employee benefit liabilities that the company owes to an ERISA-covered plan.

Private Investment Funds as “Trades or Businesses”

Historically, private investment funds were not considered to be part of an employer’s controlled group because they were not considered to be a “trade or business.” Past rulings generally have supported the conclusion that a passive investment, such as through a private equity fund, is not a trade or business and therefore cannot be considered part of a controlled group.^[4]

In 2007, however, the Appeals Board of the PBGC issued a contrary opinion, concluding a private equity fund that invested in a company that eventually failed was a “trade or business” and therefore was jointly and severally liable for the unfunded employee benefit liabilities of the company’s defined benefit pension plan, which was terminated by the PBGC. Although the 2007 PBGC opinion letter was disputed by many practitioners, it was endorsed by at least one court.^[5]

The Palladium Capital Case

In Palladium Capital, a related group of companies participated in two multiemployer pension plans. The companies became insolvent, filed for bankruptcy, withdrew from the multiemployer pension plans, and were assessed more than $13 million in withdrawal liability. Unable to collect the withdrawal liability from the defunct companies, the pension plans initiated litigation against three private equity limited partnerships and a private equity firm that acted as an advisor to the limited partnerships. The three limited partnerships collectively owned more than 80% of the unrestricted shares of the defunct companies, although no single limited partnership owned more than 57%.

Based on the specific facts of the case, and relying in part on the PBGC’s 2007 opinion, the U.S. District Court for the Eastern District of Michigan denied the parties’ cross-motions for summary judgment. Among other things, the court stated that there were material facts in dispute over whether the three limited partnerships acted as a joint venture or partnership regarding their portfolio investments, whether the limited partnerships were passive investors or “investment plus” investors that actively and regularly exerted power and control over the financial and managerial activities of the portfolio companies, and whether the limited partnerships and their financial advisor were alter egos of the companies and jointly liable for the assessed withdrawal liability. Because there were genuine issues of material fact regarding each of these issues, the court denied each party’s motion for summary judgment.

Significance of the Sun Capital Decision

In concluding that a private equity fund is not a “trade or business,” the Sun Capital decision directly refutes the 2007 PBGC opinion letter and its reasoning. If the Sun Capital decision is followed by other courts, it will provide welcome clarity to private equity firms and private equity funds in determining how to structure their investments. Among other things, both private equity funds and defined benefit pension plans would benefit from knowing whether or under what circumstances a fund’s passive investment in a portfolio company can constitute a “trade or business” thus subjecting the private equity fund to potential controlled group liability. Similarly, both private equity firms and private equity funds need to know whether a court will attribute to the private equity fund the actions of a general partner or financial or management advisors in determining whether the investment fund is sufficiently and actively involved in the operations and management of a portfolio company to be considered a “trade or business.”

The Sun Capital decision was rendered, as noted above, against a backdrop in which the PBGC and underfunded pension plans are becoming more aggressive in pursuing new theories of liability against various solvent entities to collect substantial sums that are owed to the employee benefit plans by insolvent and bankrupt companies. Until the law becomes more developed and clear regarding the various theories of liability that are now being asserted against private equity funds investing in portfolio companies that are exposed to substantial employee benefits liability, it would be prudent for private equity firms and investment funds to do the following:

Structure carefully their operations and investment vehicles.
Be cautious in determining whether any particular fund should acquire a controlling interest in a portfolio company that faces substantial unfunded pension liability.
Ensure that the private equity fund is a passive investor and does not exercise “investment plus” power and influence over the operations and management of its portfolio companies.
Conduct thorough due diligence into the potential employee benefits liability of a portfolio company, including “hidden” liabilities, such as withdrawal liability, that generally do not appear on corporate balance sheets and financial statements.
Be aware of the risks in structuring a transaction in which an important objective is to elude withdrawal liability.

Similarly, until the law becomes more developed and clear, multiemployer pension plans may wish to devote particular attention to the nature and structure of both strategic and financial owners of the businesses that contribute to their plans and should weigh and balance the risks to which they are exposed by different ownership approaches.

_{[1]. Sun Capital Partners III, LP v. New England Teamsters & Trucking Indus. Pension Fund, No. 10-10921-DPW, 2012 WL 5197117 (D. Mass. Oct. 18, 2012), available here.}

_{[2]. Sun Capital, slip op. at 17.}

_{[3]. Id. at 29-30.}

_{[4]. See e.g., Whipple v. Comm’r., 373 U.S. 193, 202 (1963).}

_{[5]. See, e.g., Bd. of Trs., Sheet Metal Workers’ Nat’l Pension Fund v. Palladium Equity Partners, LLC (Palladium Capital), 722 F. Supp. 2d 854 (E.D. Mich. 2010).}

Operational and Technical Changes for FACTA Compliance – January 30 – February 1, 2013

The National Law Review is pleased to bring you information about the upcoming Global Financial Markets – Operational and Technical Changes for FACTA Compliance:

key topics

Assess the full implications of the finalized FATCA regulation

Coordinate an optimal approach to operational, infrastructural and technical changes under FATCA

Identify strategies to effectively manage client accounts

Integrate existing internal procedures with FATCA compliance

Understand what is expected by the IRS

key features

Pre-Conference Workshop on January 30, 2013 for an Additional Cost:

Pre-Conference Workshop: The Intergovernmental Agreements: Changing the Face of International Tax lead by JP&MF Consulting and Mopsick Tax Law LLP

event focus

FATCA is amongst the biggest topics of debate in financial institutions across the globe. The effect that it will have on these institutions cannot be underestimated and its operational impact on the existing systems is set to be both time consuming and costly. The ability to successfully align all key stakeholders, including operations, technology, risk, legal and tax, will determine the ultimate cost of FATCA compliance. Moving on from mere interpretive matters, this GFMI conference will not only address key FATCA requirements but also discuss the practical impacts of IGAs and strategies for achieving operational and infrastructural efficiency.

The Operational and Technical Changes for FATCA Compliance Conference will be a two and half day, industry focused event, specific to Senior Executives working in Banks, Insurance and Asset Management Companies. Attendees will address key FATCA requirements, while discussing the practical implications of IGAs and strategies for achieving operational and infrastructural efficiency.

Key Themes of the Operational and Technical Changes for FATCA Compliance Conference Include:

1. Challenges of FATCA regulations and prospects for the final regulation

2. Achieving operational and infrastructural efficiency

3. Coordinating existing AML/KYC procedures with FATCA compliance

4. FATCA from the FFI’s perspective 5. Beyond banking: the challenges of FATCA implementation

6. Coping with the withholding obligation under FATCA

This is not a trade show; our conference series 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.

Timesharing and Transportation Portion of a Parenting Plan

The National Law Review recently published an article by Rebecca L. Palmer with Lowndes, Drosdick, Doster, Kantor & Reed, P.A. regarding Parenting Plans:

ALWAYS be sure to consider who will be dropping off and picking up the minor children when entering into a Parenting Plan. Remember that it is not necessary for one party to constantly be responsible for the transportation. In most cases, it is shared. While the majority of parenting plans take into consideration how the minor children will be transported, when, and by whom, we nevertheless come across agreements that are not specific.

As you determine what is in the children’s and your own best interest, be sure to contemplate the number of times your agreement causes you to come into direct contact with the other parent. Often times it is beneficial for the parents to drop off and pick up the minor children at school, thereby avoiding the constant interaction the parents would otherwise have. We recommend this whenever possible as it is a “natural transition”. For example, when school has ended or is beginning, they need to be driven there. This is better than for example the anxiety created in a Sunday night exchange at one of the residences. This said, you may run into issues if the children are involved in extra-curricular activities and their uniforms and equipment need to be transported back and forth to each parents residence so planning ahead is important.

If you are unable to have pick ups and drop offs take place at school, then consider what other options may be available. Would you prefer to pick up and drop off at one another’s residence? Or, do you not feel comfortable with the other parent coming to your residence on a weekly basis. If not, then maybe you request that drop offs and pick ups take place at a halfway point, i.e. somewhere fun for the kids where they could be occupied like a McDonalds or somewhere comfortable for them. Regardless of the exchange location, be sure that you are comfortable waiting there if the other party is running late. For instance, if you are at home and the other parent is dropping off the children to you, then this may be more convenient if that parent is running late versus waiting in a parking lot.

Think this through as your daily life could be effected by the decision you make now! Keep in mind natural transitions and comfortable places for all involved for the exchange.

This article was co-written by Alisha Cyrus.

Rainmaker Retreat: Law Firm Marketing Boot Camp

The National Law Review is pleased to bring you information about the upcoming Law Firm Marketing Boot Camp:

WHY SHOULD YOU ATTEND?

Have you ever gone to a seminar that left you feeling motivated, but you walked out with little more than a good feeling? Or taken a workshop that was great on style, but short on substance?

Ever been to an event that was nothing more than a “pitch fest” that left a bad taste in your mouth? We know exactly how you feel. We have all been to those kinds of events and we hate all those things too. Let me tell you right up front this is not a “pitch fest” where speaker after speaker gets up only trying to sell you something.

We have designed this 2 day intensive workshop to be content rich, loaded with practical content.

We are so confident you will love the Rainmaker Retreat that we offer a 100% unconditional money-back guarantee! At the end of the first day of the Rainmaker Retreat if you don’t believe you have already received your money’s worth, simply tell one of the staff, return your 70-page workbook and the CD set you received and we will issue you a 100% refund.

We understand making the decision to attend an intensive 2-day workshop is a tough decision. Not only do you have to take a day off work (all Rainmaker Retreats are offered only on a Friday-Saturday), but in many cases you have to travel to the event. As a business owner you want to be sure this is a worthwhile investment of your time and money.

WHO SHOULD ATTEND?

Partners at Small Law Firms (less than 25 attorneys) Solo Practitioners and Of Counsel attorneys who are committed to growing their firm. Benefits you will receive:

Solo practitioners who need to find more clients fast on a shoe-string budget. In addition to all the above benefits, solo attorneys will receive these massive benefits:

Law Firm Business Managers and Internal Legal Marketing Staff who are either responsible for marketing the law firm or manage the team who handles the law firm’s marketing. In addition to all the above benefits, Law Firm Business Managers and Internal Legal Marketing Staff will also receive these benefits:

Of Counsel Attorneys who are paid on an “eat what you kill” basis. In addition to all the above benefits, Of Counsel attorneys will also receive these benefits:

Associates who are either looking to grow their book of new clients in the next 6-12 months or want to launch their own private practice. In addition to all the above benefits, Associates will also receive these benefits:

Foundational Issues for Angel Investors

Paul A. Jones of Michael Best & Friedrich LLP recently had an article, Foundational Issues for Angel Investors, published in The National Law Review:

The angel investment community in Wisconsin has been growing steadily for several years now, and given the limited availability of professional venture capital in the state this is good news. My purpose today is to offer some of the newer and prospective angel investors in our state some ideas they should think about in terms of what they want to get out of their angel investing activities, and some of the things they should consider in terms of accomplishing those goals. As in all of my blogs, the focus is on high impact angel entrepreneurship and investing.

Realistic Objectives. Most angels, while looking to make some money, also have other objectives, ranging from keeping busy to “giving back” to other entrepreneurs, to supporting regional economic development. That is all good, because with the odd exception that proves the rule, high impact angel investors generally don’t generate the kinds of returns that professional seed/early stage venture capital investors generate. Still, even if your core objective is not about financial returns, it is a big mistake to invest in any deal that does not pass the blush test as a financial investment. Take marginally more risk than a professional investor playing with other folks’ money might take, and pay a modest premium for the honor; but never invest in a deal, or on terms, that don’t make sense as an investment. If you do, you won’t be doing yourself, your community or the entrepreneur any favors. And you probably won’t have much fun, either.

It’s All About Deal Flow. Consistently successful angel investors share a critical trait with their consistently successful venture capital cousins: great deal flow. That is, they get the “pick of the crop” of available deals. So, as a new angel, how do you get access to the best deals?

Good angel deal flow is almost always a result of a solid value added investment proposition. That is, angels that bring something valuable to their portfolio companies beyond capital almost always have better deal flow than those who don’t. Maybe you have great connections with downstream investors. Or maybe you are a great management coach with deep industry knowledge and networks. Whatever. As a new angel investor, if you want to get quality deal flow – the sine qua non of successful angel investing – you must establish and deliver a value proposition for entrepreneurs over and above writing a check.

Find a Good Niche. Angel investing and investors come in a bewildering array of flavors. Some angels are lone wolves, while others run better in packs. Some have very specific industry preferences, while others may focus on investment/business stage. These choices should, of course, reflect the value add investment proposition of the particular angel. They should also reflect a variety of other factors. For example, rational angel investing, as rational venture capital investing, is based on diversifying investments across a portfolio of deals. Ten is the “rule of thumb” but you should consider five a minimum portfolio objective. Well, if you have $500k, and you want to make at least five investments, you either need to limit your per company investment to $100k (and that, typically, in multiple tranches) or you need to find a pack to join to leverage your personal capital pool. The size of the capital base also impacts whether you will look to be a leader in the angel round, or a follower – which in turn will impact how much say you will have (in the strict follower case, little or none) in setting the terms of the deal. If you find yourself in a pack, consider whether you want to be a committed fund – that is, a fund with pool of available capital committed – or a “pass the hat” operation, where each member of the pack makes their own investment decision. (All other things equal, entrepreneurs – here is that deal flow issue again – prefer committed capital funds, with or without side cars, to pass the hat funds.) Finally, consider what your time horizon is. If you want to see customer validation sooner rather than later, stay away from most early stage biotech deals, for example, even if they otherwise fit your criteria.

Learn the Rules Before You Break Them. Whatever your objectives are, do yourself, entrepreneurs, other angels and downstream investors a favor: don’t try to tell the repeat players already in the business how to go about the business. While there is always room for improvement (well, almost always) the “conventional rules” of angel investing in terms of deal terms are conventional for a reason: they more or less work, and they are more or less easy/cost-effective to implement (assuming both sides have experienced counsel). If as a newer angel you want to do something materially different from the industry norm with the terms of a deal, be ready to explain just what the problem with more traditional terms is in the specific instance – and why your tweaks won’t complicate raising downstream capital. If you are honest about this, you will most likely never propose terms that are materially different from the conventional wisdom.

A Final Thought. The “big four” risk factors in deal due diligence are team, market, technology and financing. A word to the wise: twenty-five years in and around the venture capital, high impact entrepreneurship, and angel investing world has taught me one lesson above all others: the most important factor in success is the team. If you are not good at, and serious about, team due diligence, find another angel who is, and don’t write a check without her.

2nd Annual Canadian and Global Anti-Corruption Compliance – February 20-22, 2013

The National Law Review is pleased tobring you information regarding the upcoming 2nd Annual Canadian & Global Anti-Corruption Compliance Conference:

Key Topics

Create and manage an anti-corruption compliance program with Scotiabank
Assess anti-corruption enforcement trends in Canada and globally with Weatherford International
Conduct prompt and effective internal investigations with Magna International
Strengthen ongoing employee compliance training programs with Halliburton
Promote a culture of ethics within the organization with Teekay Corporation

Key Features

2 Pre-Conference Workshops on February 20, 2013

Pre-Conference Workshop A: Expand and Strengthen your Global Compliance Program led by Brent Molesky, Vice President of Legal at Talisman Energy and Frank McShane, Manager, Corporate Responsibility & Ethics at Talisman Energy

Pre-Conference Workshop B: Conduct Thorough Due-Diligence for Third Parties led by Hentie Dirker, Regional Compliance Officer at Siemens Canada

Event Focus

Given the escalating pressure from the global community for the Royal Canadian Mounted Police (RCMP) to strengthen their bribery and anti-corruption enforcement, it is key for any cross-border Canadian company to ensure full compliance with both Canadian and global laws.

The marcus evans 2^nd Annual Canadian & Global Anti-Corruption Compliance Conference will build upon the inaugural through expanding on issues of Canadian and global anti-corruption enforcement.

By attending this second annual conference, delegates will be able to avoid the risk of fines and investigations through implementing critical bribery and anti-corruption internal controls as well as implement effective compliance programs and improve ongoing employee training. Attendees will walk away from this conference with an improved understanding of risk and how to streamline internal processes and procedures to ensure compliance within companies expanding business both in Canada and globally.

Attending This Conference Will Enable You To:

1. Review the regulatory environment and enforcement trends
2. Develop policies for internal controls for anti-corruption
3. Assess areas of risk within an organization
4. Deal with internal and governmental investigations

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

The National Law Forum

Federal Courts Clarify Reasonable-Accommodation Standards

Leaves of Absence as a Reasonable Accommodation

Transfers to a Different Position as a Reasonable Accommodation