Notice: Function _load_textdomain_just_in_time was called incorrectly. Translation loading for the login-customizer domain was triggered too early. This is usually an indicator for some code in the plugin or theme running too early. Translations should be loaded at the init action or later. Please see Debugging in WordPress for more information. (This message was added in version 6.7.0.) in /home1/natiopq9/public_html/wp-includes/functions.php on line 6131

Deprecated: Function WP_Dependencies->add_data() was called with an argument that is deprecated since version 6.9.0! IE conditional comments are ignored by all supported browsers. in /home1/natiopq9/public_html/wp-includes/functions.php on line 6131

Deprecated: Function WP_Dependencies->add_data() was called with an argument that is deprecated since version 6.9.0! IE conditional comments are ignored by all supported browsers. in /home1/natiopq9/public_html/wp-includes/functions.php on line 6131
The National Law Forum - Page 686 of 753 - Legal Updates. Legislative Analysis. Litigation News.

FERC Rules on Several Core Reliability Compliance Issues: New Orders Address Cybersecurity, Registration, and Contingency Planning

The National Law Review published an article recently by Stephen M. Spina, J. Daniel Skees, and John D. McGrane of Morgan, Lewis & Bockius LLP regarding New FERC Rules on Reliability Compliance:

At FERC’s open meeting on April 19, 2012, FERC approved several orders addressing core aspects of Reliability Standards compliance, including cybersecurity Reliability Standards, compliance registration, and contingency planning issues. The newly approved cybsersecurity Reliability Standards significantly increase the scope of facilities subject to those requirements, the compliance registration decisions clarify the jurisdictional boundary between distribution and transmission facilities, and the planning orders represent a rejection of NERC’s approach to planning for firm load loss following a single contingency.

Cybersecurity: FERC Approves Version 4 CIP Reliability Standards

In Order No. 761, FERC approved Version 4 of the Critical Infrastructure Protection (CIP) Reliability Standards. Under Version 4, the risk-based assessment methodology previously used to identify the Critical Assets that must be protected under the CIP Reliability Standards is replaced with a list of “bright-line” criteria for identifying Critical Assets, contained in Attachment 1 to CIP-002-4. These criteria, FERC concluded, “will offer an increase in the overall protection for bulk electric system components that clearly require protection, including control centers.” In the order, FERC established a deadline of March 31, 2013, for NERC to submit the Version 5 CIP Reliability Standards, which will address the remaining directives from Order No. 706, in which FERC approved the original CIP Reliability Standards. The project site for the Version 5 CIP Reliability Standards is located online.

Compliance Registration: FERC Addresses Distribution/Transmission Distinction

In City of Holland, 139 FERC ¶ 61, 055 (2012), FERC rejected the City of Holland, Michigan, Board of Public Works’ appeal of NERC’s decision to register the City of Holland as a Transmission Owner and Transmission Operator. In reaching this decision, FERC rejected the City of Holland’s assertion that its facilities are distribution facilities, and therefore not part of the definition of “Bulk Electric System” and not subject to registration. FERC explained that the City of Holland’s facilities perform a transmission function, transporting power from the City of Holland’s generation facilities or importing power from other sources over high-voltage lines before stepping the voltage down for distribution to end users. In reaching this decision, FERC also thought it relevant that the facilities at issue do not serve load from a single transmission source, can experience bi-directional flows, and are above the voltage level generally considered distribution voltage.

Commissioner Cheryl A. LaFleur dissented on the grounds that this order depends on the fundamental, yet unsettled question of what facilities are considered “local distribution” under Section 215 of the Federal Power Act (FPA) and therefore outside of FERC’s jurisdiction. As explained in Commissioner LaFleur’s dissent, FERC has in the past identified the criteria for identifying local distribution facilities under Section 201(b) of the FPA, which uses language identical to Section 215, but FERC chose not to apply the Section 201(b) criteria in addressing the City of Holland’s appeal. Commissioner LaFleur asserted that if FERC believes that Congress intended to create different classes of local distribution facilities, FERC has the “burden of demonstrating that this is a reasonable interpretation of the statute.”

In U.S. Department of Energy, Portsmouth/Paducah Project Office, 139 FERC ¶ 61,054 (2012), FERC granted the Portsmouth/Paducah Project Office’s appeal of its registration as a Load-Serving Entity (LSE). FERC had previously remanded this registration, and in ruling on NERC’s subsequent decision upholding the registration, concluded that NERC had failed to support registration as an LSE because NERC had not shown that the lessees and contractors working at the Portsmouth/Paducah Project Office are separate end-use customers to whom the Portsmouth/Paducah Project Office provides electricity. FERC explained that the Ohio Valley Electric Corporation, which sells to the Portsmouth/Paducah Project Office under a state retail tariff, is the appropriate LSE.

Contingency Planning: FERC Demands Stringent Criteria for Planned Load Loss Following a Single Contingency

In Order No. 762, FERC rejected NERC’s proposed revisions to “Note b” in TPL-002-0b, which explains when a Transmission Planner or Planning Authority can plan for the interruption of firm load to meet system reliability requirements following a single contingency. Under NERC’s proposal, these entities could plan for load shedding following a single contingency so long as they documented such planning and considered alternative solutions in an open and transparent stakeholder process. FERC concluded that the proposal failed to satisfy FERC’s earlier directives on this issue and did not present an “equally effective and efficient alternative.” According to FERC, the proposed Note b process “is vague, potentially unenforceable and may lack safeguards to produce consistent results.” The parameters for the proposed stakeholder process, FERC concluded, do not provide a meaningful limitation on the ability to curtail firm load following a single contingency. Furthermore, the conditions under which such interruptions are appropriate remain undefined, threatening the basic system performance objectives of the NERC Transmission Planning Reliability Standards, risking system reliability.

In Transmission Planning Reliability Standards, Notice of Proposed Rulemaking, 139 FERC ¶ 61,059 (2012), FERC proposed to remand NERC’s proposal to combine the four current Transmission Planning Reliability Standards into a single new standard, TPL-001-2. According to FERC, footnote 12 to Table 1 in this proposed standard, which governs planning for the interruption of firm load following a single contingency, presents the same concerns as the Note b issues that led FERC to reject a similar proposal in Order No. 762 (described above). This footnote, which only requires a documented plan developed through an open and transparent stakeholder process that considers alternatives, does not define the parameters governing the decision to plan for the loss of firm load following a single contingency. While FERC noted several improvements in the standard, because of concerns with footnote 12, FERC proposed to find that TPL-001-2 does not meet the statutory criteria for approval. Comments will be due 60 days after the Notice of Proposed Rulemaking is published in the Federal Register. In the Notice of Proposed Rulemaking, FERC requested comments on several transmission planning issues in addition to the core concern regarding planned load curtailments.

Copyright © 2012 by Morgan, Lewis & Bockius LLP

8th Annual FCPA & Anti-Corruption Compliance Conference

The National Law Review is pleased to bring you information about the upcoming 8th FCPA & Anti-Corruption Compliance Conference:

8th FCPA and Anti-Corruption Compliance Conference
Identifying Changes to the Global Anti-Corruption Compliance Landscape to Maintain and Upgrade Your Existing Compliance Program

Event Date: 12-14 Jun 2012
Location: Washington, DC, USA

Beyond dealing with the FCPA and UK Bribery Act, there are upcoming changes to global Anti-Compliance initiatives being enacted by other major countries. It is imperative that organizations are made aware of these new rules and regulations to be able to meld them all into their organization’s anti-corruption compliance program. Maintaining a robust global compliance program along with performing proper and detailed 3rd party due diligence is of the upmost importance.

Marcus Evans invites you to attend our 8th Annual Anti-Corruption & FCPA Conference. Hear from leading executives within various industries on how to identify new areas of concern when dealing with bribery or working within a company to update an anti-corruption compliance program.

Attending this event will allow you to learn how to mitigate the effects of any possible instances of corruption and bribery both at home and abroad. Discuss solutions and best practices that companies have found when dealing with their anti-corruption compliance programs. This conference will not only review the newest enforcement cases, but also highlight practical solutions to problems dealing with FCPA and global anti-corruption measures.

Attending this conference will allow you to:

-Overcome the issues in dealing and conducting an internal investigation with Dell
-Identify anti-corruption liability concerns for US companies when engaging in Joint Ventures and Mergers and Acquisitions with Crane Co.
-Perform anti-corruption audits to better identify gaps in the compliance program with SojitzCorporation of America
-Promote a culture of ethics within an organization to combat non-compliance with Morgan Stanley
-Assess the continued challenges in conducting a 3rd party due diligence program with Parker Drilling

The marcus evans 8th Annual Anti-Corruption & FCPA Conference is a highly intensive, content-driven event that includes, workshops, presentations and panel discussions, over three days. This conference aims to bring together heads, VP’s, directors, chief compliance officers, and in-house counsel in order to provide an intimate atmosphere for both delegates and speakers.

This is not a trade show; our 8th Annual Anti-Corruption & FCPA Conference is targeted at a focused group of senior level executives to maintain an intimate atmosphere for the delegates and speakers. Since we are not a vendor driven conference, the higher level focus allows delegates to network with their industry peers.

Once Is Not Enough: The Importance of Regular Communication Between Testators and Their Lawyers

 

When it comes to estate planning, an ounce of prevention is worth a pound of cure. Equally important, continuing consultation with a knowledgeable lawyer need not be time consuming or costly. Periodic reviews can ensure that estate papers provide for changes in circumstances and the law that would later prove difficult and expensive to resolve when the testator’s wishes must be implemented.

The example of George Wagner serves as a cautionary tale. In 1961, George, a childless bachelor, executed a last will and testament providing for a testamentary trust on his death, without a residuary clause. He appointed a corporate trustee as his trustee and executor, and bequeathed his property on his death to the trustee, in trust, for the benefit of his sister, Elizabeth, while she lived. On Elizabeth’s death, the trustee was to end the trust and distribute its property “only” to the “Ancient Free and Accepted Masons of Maywood, Illinois, Maywood Lodge No. 869,” with no interest to vest until the “the day upon which the Trust herein created shall terminate.” When George died in 1978, his will was admitted to probate, the trustee was appointed executor as he wished, and the trust was created with funds of $250,000.

Elizabeth died in 1986 in California, but nobody told the trustee, who administered the trust funds until 1995, when it learned Elizabeth had died. By then, the trust funds totaled over $500,000. The trustee also learned that the Maywood Lodge had been disbanded in 1982 and merged into another Masonic lodge, Pleiades Lodge No. 478.

The trustee’s duty was to fulfill George’s testamentary objectives, but because George did not say how to distribute the trust funds if the Maywood Lodge ceased to exist, the trust could be interpreted in different ways. If George meant to benefit any Masonic lodge into which the Maywood Lodge merged, the trust funds should go to the Pleiades Lodge. If George meant to benefit “only” the Maywood Lodge, his bequest lapsed when the Maywood Lodge was dissolved, and the trust funds should be distributed under the law of intestacy.

To resolve this issue, the trustee filed a complaint for construction of the trust in court, asking for directions on how to distribute the trust funds. A genealogical search found two paternal cousins of George in California, and the trustee named them and the Masonic lodges as defendants to the suit. George’s cousins and the Pleiades Lodge each asserted exclusive rights to the trust funds. There were no surviving witnesses who might have had insight as to George’s testamentary intent. The court was left to decide which legal doctrine to apply in the circumstances.

The court might have chosen the doctrine of deviation, which applies when a situation arises that is not covered by a trust’s specific provisions and was not anticipated by the settlor or testator. Under this doctrine, the court must gauge the overall purpose of the trust and fulfill the settlor’s intent by authorizing deviation from the trust’s terms, ascertaining as best it can what the settlor most likely would have done in circumstances that he or she did not contemplate. There are similar doctrines for charitable trusts, but those did not apply because George’s will did not contain an expression of charitable intent.

Alternatively, the court might have chosen the clear language rule, which holds that the court’s primary goal is to ascertain the settlor’s intentions, initially by looking to the trust language. If the words of the trust instrument are clear, the court must presume that they express the settlor’s intention and apply the language verbatim, without resorting to evidence of intent existing outside the trust instrument.

The court would have had a hard time making a decision. George plainly did not want his property distributed to strangers and had not anticipated that the Maywood Lodge would cease to exist before Elizabeth died. These circumstances would have occasioned application of the doctrine of deviation. But the language of the instrument was also unambiguous: the trustee was to distribute the trust property “only” to the Maywood Lodge, thereby excluding the Pleiades Lodge and leaving the trustee no choice but to distribute the trust funds under the law of intestacy. Either way, the court would at best have been approximating George’s intent.

In the end, the court did not need to resolve the controversy. The putative claimants settled the case, dividing the trust funds evenly. But the situation need not have arisen. Had George even occasionally consulted with a lawyer knowledgeable in estate planning, he could easily have updated his will and testamentary trust to include viable contingent beneficiaries if the Maywood Lodge ceased to exist before the time came to distribute his trust funds, and to include a residuary clause to distribute any remainder.

The case shows why clients should cultivate an ongoing relationship with lawyers who are well versed in estate planning, keep abreast of developments in the law, and will serve as a continuing resource as circumstances and needs change.

© 2012 Much Shelist, P.C.

Upcoming Spring 2012 CLE National Institutes

The National Law Review is pleased to bring you information about the ABA’s Upcoming Spring 2012 CLE National Institutes:

Learn and network at these in-person,full-day or multi-day seminars held live in various locations across the country that draw lawyers from across the nation.

The Health Effects of Divorce can be both Detrimental and Beneficial

Recently an article by Rebecca L. Palmer and Crystal Espinosa Buit of Lowndes, Drosdick, Doster, Kantor & Reed, P.A. regarding The Health Effects of Divorce was published in The National Law Review:

Divorces affect every aspect of an individual’s life – their financial situation, their children, their home, their friendships, everything. Divorces are notoriously stressful events and, while a stressful marriage can absolutely consume a person to their detriment, many people would also agree that their lives are negatively impacted in some way by the process. What most people may not recognize, however, is how significant a role divorce plays in their overall mental and physical health. While short term effects are generally associated with divorce, recent studies have focused on the long-term impacts to health. The findings are troubling. In a 2009 study conducted by sociologists Linda Waite and Mary Elizabeth Hughes of the University of Chicago, research showed that divorced or widowed individuals are 20 percent more likely than married people to have chronic health conditions, such as heart disease, diabetes, or cancer. In addition, they also showed 23 percent more mobility limitations, such as trouble climbing stairs or walking. The study, which examined the marital history and health indicators for 8,652 people between the ages of 51 and 61, focused on four categories: chronic health conditions, mobility, depressive symptoms and self-assessment. The results of the study support the contention that those who experience a divorce or the death of a spouse have long-term negative consequences related to their health.

University of Texas at Austin researcher Mark Hayward tells WebMD “that long-term stress before, during, and after a divorce may accelerate the biologic processes that lead to cardiovascular disease and possibly other chronic diseases.” In his study on the impact of divorce on heart disease, he showed that divorced, middle-aged women were more likely to develop heart disease than other non-divorced, married women. Although Hayward’s study focused on women, the health consequences of divorce are not specific to gender. In a 2010 article on marriage and men’s health, the Harvard Medical School cited a MFRIT study of 10,904 American married men which revealed that men who divorced were 37 percent more likely to die during the nine-year study than men who remained married. This may be due to the biological effects stress is having on men and women alike. The Harvard Medical School notes that stress triggers inflammation, which is a newly recognized cardiac risk factor. Thus, it may come as no surprise that divorced men have higher levels of inflammatory markers than married men.

Divorce also alters lifestyle habits and behaviors that may adversely affect health. Researchers from Ohio State University found that, two years after a divorce, separated partners tended to be heavier as compared to couples who remained married, although men showed larger weight gains than women. Harvard Medical School similarly points out that divorced men don’t eat as well as married men. Furthermore, divorced men are less likely to exercise and are more likely to smoke, drink excessively, and engage in other risky behaviors. It is clear that divorce may cause some people to engage in destructive conduct that inevitably affects their physical and mental well being.

There is no doubt that electing to end your marriage is a decision that should be weighed heavily. The unsettling studies on the health effects of divorce can only lead one to question why divorce has such a powerful impact on a person’s health. When discussing her research on the subject, sociologist Linda Waite noted that “previous research suggests that marriage has protective health benefits by providing financial, social, and emotional stability.” Specifically, women often have more financial security, thus allowing them access to health care and reduced stress, while married men have better health habits in comparison to single males. It also goes without saying that the stress of determining the division of marital assets and child custody directly contributes to this impact.

On the other hand, while a healthy marriage has been shown to provide protective health benefits, several studies also “show that the marriage advantage doesn’t extend to those in troubled relationships, which can leave a person far less healthy than if he or she had never married at all.” One study, for instance, showed that a stressful marriage can be as bad for the heart as a regular smoking habit. Further, just as divorce has been found to negatively impact women’s health specifically, researchers have also found that “bad relationships [are] bad for health” as women in troubled relationships (who likely face anger, stress and hostility) are more likely than other women to be depressed, have metabolic syndrome, low levels of HDL (good) cholesterol, abdominal obesity, and elevated blood sugar – “all basically steps on the road to heart attack or diabetes.”

Accordingly, it is important to remember that, while divorce has been shown to have negative impacts on health, this is not true for everyone as an unhealthy relationship can also lead to certain health problems, including physical ailments and mental depression. As researcher Mark Hayward noted, “For people in highly stressful marriages, divorce may be beneficial for their health.”

Ultimately, those seeking to prevent their current circumstances, whether a troubled marriage or divorce, from impacting their physical and mental health should seek measures to reduce stress and remember that a divorce should serve as a gateway to a healthier and happier life. When going through a divorce it is vital to remember the basics – eat well, exercise and, quite simply, remember to do the things that make you happy. Further, surrounding oneself with a supportive environment and attending counseling, if needed, will lessen health risks by helping one to cope with the stress.

© Lowndes, Drosdick, Doster, Kantor & Reed, PA

ICC Institute Masterclass for Arbitrators

The National Law Review is pleased to bring you information about the upcoming ICC Conference  Masterclass Arbitrators:

Join us for an intensive 2 1/2 day training for professionals interested in working as international arbitrators!

June 4-6, 2012 at ICC Headquarters in Paris.

Michigan Court of Appeals Issues Opinion Affecting Mortgages Foreclosed by Advertisement

The National Law Review published an article by Randall J. Groendyk of Varnum LLP regarding Mortgage Foreclosures:

Varnum LLP

The Michigan Court of Appeals has issued important opinion affecting foreclosure of mortgages by advertisement.

Michigan law prohibits starting a foreclosure by advertisement if a lawsuit has already been filed to recover payment of “the debt” secured by the mortgage.  Many have understood this law to mean that while a mortgagee may not file a lawsuit to recover a debt secured by a mortgage and at the same time foreclose the mortgage by advertisement, the mortgagee could simultaneously file a lawsuit against a guarantor based on a guaranty of the debt while at the same time foreclosing the mortgage by advertisement.  However, the recent Court of Appeals decision held that a bank could not foreclose by advertisement on a mortgage when at the same time it had filed suit against a guarantor.

The Court based its decision on the fact that the underlying loan documents contained language which defined “the debt” to include any guarantees, and held the bank violated Michigan law by foreclosing the mortgage by advertisement at the same time it was suing the guarantors.  The Court looked at the entire loan package, and not just the mortgage to reach its decision.  As a result, the Court held that the bank could not proceed with the foreclosure by advertisement.  Under the Court’s ruling, mortgagees may not foreclose a mortgage by advertisement while at the same time filing suit against guarantors.

© 2012 Varnum LLP

2012 National Law Review Law Student Writing Competition

The National Law Review is pleased to announce their 2012 Law Student Writing Competition

The National Law Review (NLR) consolidates practice-oriented legal analysis from a variety of sources for easy access by lawyers, paralegals, law students, business executives, insurance professionals, accountants, compliance officers, human resource managers, and other professionals who wish to better understand specific legal issues relevant to their work.

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).

In addition, the NLR sends links to targeted articles to specific professional groups via e-mail. The NLR also posts links to selected articles on the “Legal Issues” or “Research” sections of various professional organizations’ Web sites. (NLR, at its sole discretion, maydistribute any winning entry in such a manner, but does not make any such guarantees nor does NLR represent that this is part of the prize package.)

Congratulations to our 2012 and 2011 Law Student Writing Contest Winners

Winter 2012:

Fall 2011:

Why Students Should Submit Articles:

  • Students have the opportunity to publicly display their legal knowledge and skills.
  • The student’s photo, biography, and contact information will be posted with each article, allowing for professional recognition and exposure.
  • Winning articles are published alongside those written by respected attorneys from Am Law 200 and other prominent firms as well as from other respected professional associations.
  • Now more than ever, business development skills are expected from law firm associates earlier in their careers. NLR wants to give law students valuable experience generating consumer-friendly legal content of the sort which is included for publication in law firm client newsletters, law firm blogs, bar association journals and trade association publications.
  • Student postings will remain in the NLR online database for up to two years, easily accessed by potential employers.
  • For an example of  a contest winning student written article from Northwestern University, please click here or please review the winning submissions from Spring 2011.

Content Guidelines and Deadlines

Content Guidelines must be followed by all entrants to qualify. It is recommended that articles address the following monthly topic areas:

  • March Topic Feature:  Environmental and Energy, Insurance and Intellectual Property Law
  • March Submission Deadline:  Tuesday, February 21, 2012
  • May Topic Feature:     Tax, Bankruptcy and Restructuring and Healthcare Law
  • May Submission Deadline:  Monday, April 16, 2012

Articles covering current issues related to other areas of the law may also be submitted. Entries must be submitted via email to lawschools@natlawreview.com by 5:00 pm Central Standard Time on the dates indicated above.

Articles will be judged by NLR staff members on the basis of readability, clarity, organization, and timeliness. Tone should be authoritative, but not overly formal. Ideally, articles should be straightforward and practical, containinguseful information of interest to legal and business professionals. Judges reserve the right not to award any prizes if it is determined that no entries merit selection for publication by NLR. All judges’ decisions are final. All submissions are subject to the NLR’s Terms of Use.

Students are not required to transfer copyright ownership of their winning articles to the NLR. However, all articles submitted must be clearly identified with any applicable copyright or other proprietary notices. The NLR will accept articles previously published by another publication, provided the author has the authority to grant the right to publish it on the NLR site. Do not submit any material that infringes upon the intellectual property or privacy rights of any third party, including a third party’s unlicensed copyrighted work.

Manuscript Requirements

  • Format – HTML (preferred) or Microsoft® Word
  • Length – Articles should be no more than 5,500 words, including endnotes.
  • Endnotes and citations – Any citations should be in endnote form and listed at the end of the article. Unreported cases should include docket number and court. Authors are responsible for the accuracy and proper format of related cites. In general, follow the Bluebook. Limit the number of endnotes to only those most essential. Authors are responsible for accuracy of all quoted material.
  • Author Biography/Law School Information – Please submit the following:
    1. Full name of author (First Middle Last)
    2. Contact information for author, including e-mail address and phone number
    3. Author photo (recommended but optional) in JPEG format with a maximum file size of 1 MB and in RGB color format. Image size must be at least 150 x 200 pixels.
    4. A brief professional biography of the author, running approximately 100 words or 1,200 characters including spaces.
    5. The law school’s logo in JPEG format with a maximum file size of 1 MB and in RGB color format. Image size must be at least 300 pixels high or 300 pixels wide.
    6. The law school mailing address, main phone number, contact e-mail address, school Web site address, and a brief description of the law school, running no more than 125 words or 2,100 characters including spaces.

To enter, an applicant and any co-authors must be enrolled in an accredited law school within the fifty United States. Employees of The National Law Review are not eligible. Entries must include ALL information listed above to be considered and must be submitted to the National Law Review at lawschools@natlawreview.com. 

Any entry which does not meet the requirements and deadlines outlined herein will be disqualified from the competition. Winners will be notified via e-mail and/or telephone call at least one day prior to publication. Winners will be publicly announced on the NLR home page and via other media.  All prizes are contingent on recipient signing an Affidavit of Eligibility, Publicity Release and Liability Waiver. The National Law Review 2011 Law Student Writing Competition is sponsored by The National Law Forum, LLC, d/b/a The National Law Review, 4700 Gilbert, Suite 47 (#230), Western Springs, IL 60558, 708-357-3317. This contest is void where prohibited by law. All entries must be submitted in accordance with The National Law Review Contributor Guidelines per the terms of the contest rules. A list of winners may be obtained by writing to the address listed above. There is no fee to enter this contest.

Attendance May be an Essential Function of the Job

This case tests the limits of an employer’s attendance policy. Just how essential is showing up for work on a predictable basis? In the case of a neo-natal intensive care nurse, we conclude that attendance really isessential.

So begins the United States Court of Appeals for the Ninth Circuit in Samper v. Providence St. Vincent Medical Center.

The Samper plaintiff, a neonatal nurse in the defendant-hospital’s Neonatal Intensive Care Unit (NICU), suffered from fibromyalgia which, she claimed, limited her sleep and caused her chronic pain.  The nurse asked the hospital to accommodate this disability by allowing her to miss work whenever she was having a “bad day.”  After years of unacceptable absenteeism what the Court described as the hospital’s “Herculean efforts” to accommodate the plaintiff, she was terminated.  She sued the hospital, claiming that it failed to provide her with a reasonable accommodation for her disability.

The hospital did not dispute that the plaintiff was disabled, that she had the requisite technical skills for the job, or that she suffered an adverse employment action.  The hospital argued, however, that although the plaintiff possessed the technical qualifications of the job, she was unable to perform the essential function of showing up for work.

The burden was on the hospital to establish which functions were “essential” to the job.  Arguing that the hospital did not meet its burden to show that attendance was an essential function of the job, the plaintiff cited numerous cases for the proposition that regular attendance was not required.  For example, she cited to cases where “workers were basically fungible with one another, so that it did not matter who was doing the job on any particular day,” (dockworkers) as well as cases where the work could be performed remotely (medical transcriptionists).

The Court easily distinguished those cases, however, from cases like this one, where irregular attendance compromises essential functions.  Indeed, the Court stated:

To imagine a NICU facility, responsible for the emergency care of infants, operating effectively in such a manner, stretches the notion of accommodation beyond any reasonable limit. An accommodation that would allow [the plaintiff] to “simply . . . miss work whenever she felt she needed to and apparently for so long as she felt she needed to [a]s a matter of law . . . [is] not reasonable” on its face. Internal citations omitted.

Although the Court found in favor of the defendant-hospital, and held that regular attendance was an essential function of Ms. Samper’s job, it left open the possibility that regular attendance may not be an essential function for other jobs or jobs in other industries.  Nevertheless, the Court was crystal clear that an accommodation is not reasonable if it seeks an exemption from an essential function.

The case is noteworthy for several reasons.  First, while underscoring that the burden remains on the defendant to prove which functions of the job are “essential” functions, the case shows that in certain types of jobs an employer can make a compelling case that attendance is an essential function. Second, the case is a good illustration of how an employer’s initial efforts in “going the extra mile” to accommodate an employee’s disability can redound to the employer’s advantage when it ultimately decides that the disability can no longer be accommodated.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

NY City Bar White Collar Crime Institute

The National Law Review is pleased to bring you information about the inaugural White Collar Crime Institute, on Monday, May 14, 2012 from 9 a.m. to 5 p.m. in New York City, NY.

This excellent review of developments in criminal and regulatory enforcement has been organized by our White Collar Criminal Law Committee, chaired John F. Savarese of Wachtell Lipton Rosen & Katz. Our program will feature keynote addresses by Preet Bharara, United States Attorney for the Southern District of New York, and Eric Schneiderman, Attorney General of the State of New York. The panels on key legal and strategic issues will include senior government officials, federal judges, academics, general counsel of leading New York based corporations and financial institutions, and top practitioners in the field. We have crafted the program to maximize their value for white collar practitioners and corporate counsel.

Plenary sessions will focus on:
  • Providing perspectives of top general counsel concerning the challenges they confront in this new era of expanded corporate prosecutions
  • Discussions of the increasing importance of media coverage in these cases and its impact on prosecutorial decision-making.

Break-out sessions will address:

  • Techniques for winning trials
  • Ethical issues presented by white-collar corporate investigations
  • Trends in white-collar sentencing, and
  • The special challenges of handling cross-border investigations.