- July 29, 2010 - 2010 Financial Reform Legislation - 2010 Financial Reform Legislation
Executive Compensation Provisions May Require Companies to Significantly Modify Current Practices
Some of the most heavily publicized provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Act), which was signed into law July 21, 2010, are those relating to the disclosure and determination of executive compensation. The Act’s executive compensation provisions will affect not only financial services entities, but all public companies, and will require many to review and modify their current compensation practices in rather significant respects. - July 23, 2010 - 2010 Financial Reform Legislation - 2010 Financial Reform Legislation
Act Could Impose Investment Advisor Fiduciary Standard on
Broker-Dealers and Put an End to Mandatory Customer Arbitration
On July 21, 2010, President Obama signed into law the controversial and much anticipated Dodd-Frank Wall Street Reform and Consumer Protection Act (Act). The Act constitutes the most sweeping revision of the laws governing the financial services industry since legislation that was enacted during the 1930s in response to the Great Depression. The Act addresses a number of key areas which will impact the business of broker-dealers, both now and in the future. - Ohio Supreme Court Holds That Employer’s Maternity Leave Policy Is Not Discriminatory - Ohio Supreme Court Holds That Employer’s Maternity Leave Policy Is Not Discriminatory
On June 22, 2010, the Ohio Supreme Court announced its decision in McFee v. Nursing Care Management of America, Inc., Slip Opinion No. 2010-Ohio-2744, holding that “an employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination under R.C. Chapter 4112.” Rather, the McDonnell Douglas burden-shifting analysis should be applied in cases involving such policies. - July 1, 2010 - Supreme Court of the United States Limits Scope of “Honest Services” Doctrine in Three Rulings - Supreme Court of the United States Limits Scope of “Honest Services” Doctrine in Three Rulings
On June 24, 2010, the Supreme Court of the United States issued its rulings in the cases of Skilling v. United States, Black, et al. v. United States, and Weyhrauch v. United States. These rulings affected the convictions of three high-profile defendants and limited the application of 18 USC § 1346 — the “honest services” doctrine — to cases which specifically involved the acceptance of bribes and kickbacks and did not apply the statute to cases dealing generally with undisclosed self-dealing or other conflicts of interest. - June 10, 2010 - Securities and Exchange Commission Update - Securities and Exchange Commission Update
Inability to Pay FINRA Award or Settlement is No Longer a Defense to Failure to Comply Charge
On June 2, 2010, the U.S. Securities and Exchange Commission (“SEC”) issued an order approving an amendment to the Financial Industry Regulatory Authority’s (“FINRA”) Rule 9554, which sets forth the consequences of failing to comply with an arbitration award or related settlement or an order of restitution or settlement providing for restitution to a customer. Prior to approving the Amendment, the SEC received three comments, all of which supported the change. The amendment will become effective July 2, 2010. - May 27, 2010 - 2010 Health Care Reform Legislation - More Information Released on the New Biotech Tax Credit for Therapeutic Discovery Projects - 2010 Health Care Reform Legislation - More Information Released on the New Biotech Tax Credit for Therapeutic Discovery Projects
On May 21, 2010 the Department of Treasury (Treasury) unveiled the application process for the small business biotech tax credit or grant (the Tax Credit/Grant) detailed in an earlier U&B Client Alert on this topic (http://tiny.cc/0jlsb). Notice 2010-45 explains that taxpayers must submit their applications on Form 8942 by July 21, 2010. Form 8942 will be released by IRS no later than June 21, 2010. IRS will only certify the Tax Credit/Grant for projects that meet the requirements, which were discussed in the previous Alert. - May 21, 2010 - Supreme Court Update: Class Arbitration Not Warranted Where Arbitration Agreement Is Silent - Supreme Court Update: Class Arbitration Not Warranted Where Arbitration Agreement Is Silent
In Stotl-Nielsen S.A. v. AnimalFeeds Internat’l Corp., decided on April 27, 2010, the United States Supreme Court held, in a 5-3 decision with Justice Sotomayor not participating, that class action arbitration cannot be imposed on parties whose arbitration agreement is silent on the question. The decision is a victory for those who want arbitration to remain a lower cost alternative to litigation and who seek to circumscribe arbitrator discretion. - May 14, 2010 - 2010 Health Care Legislation – The New Biotech Tax Credit for Therapeutic Discovery Projects - 2010 Health Care Legislation – The New Biotech Tax Credit for Therapeutic Discovery Projects
This is the fourth in a series of Client Alerts prepared by Ulmer & Berne LLP attorneys for clients and friends relating to the recently enacted landmark health care reform legislation. Previous related Client Alerts can be found on the Firm’s website at www.ulmer.com under Articles / Alerts. - May 11, 2010 - Ohio Supreme Court Holds That Evidence of Medical Bill Write-Offs Remains Admissible Under Tort Reform - Ohio Supreme Court Holds That Evidence of Medical Bill Write-Offs Remains Admissible Under Tort Reform
On May 4, 2010, the Ohio Supreme Court announced its decision in Jaques v. Manton*, 2010-Ohio-1838, holding that evidence of medical bill write-offs is admissible in personal injury lawsuits to which R.C. 2315.20 applies. Thus, in awarding damages, the jury is entitled to consider both the billed amount of medical expenses and any reduced amount that the medical providers accept as full payment. - April 30, 2010 - The United States Supreme Court Narrows the Scope of the “Bona Fide Error” Defense in the Fair Debt Collection Practices Act - The United States Supreme Court Narrows the Scope of the “Bona Fide Error” Defense in the Fair Debt Collection Practices Act
In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, decided on April 21, 2010, the United States Supreme Court determined that a debt collector’s erroneous interpretation of the legal requirements of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §1692 et seq., did not constitute a “bona fide error” under Section 1962k(c), which provides a defense to liability for debt collectors who can show that “the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” 15 U.S.C. §1692k(c). Resolving a split in the federal circuit courts, the Court ruled that legal errors were beyond the purview of this defense. - April 26, 2010 - 2010 Health Care Reform Legislation – New Health Care Initiatives - 2010 Health Care Reform Legislation – New Health Care Initiatives
On March 23, 2010, President Obama signed into law the “Patient Protection and Affordable Care Act” (H.R. 3590). One week later, on March 30, 2010, the President signed into law the “Health Care and Education Reconciliation Act of 2010” (H.R. 4872), which modified key provisions of H.R. 3590 (collectively referred to as the “Acts”). The Acts will significantly change the nation’s health care system. Many of the Acts’ provisions impose new requirements with respect to group health plans or otherwise pertain to health insurance policies and programs that bear upon employee benefits programs. - April 26, 2010 - 2010 Health Care Reform Legislation – Employee Benefits Highlights - 2010 Health Care Reform Legislation – Employee Benefits Highlights
On March 23, 2010, President Obama signed into law the “Patient Protection and Affordable Care Act” (H.R. 3590). One week later, on March 30, 2010, the President signed into law the “Health Care and Education Reconciliation Act of 2010” (H.R. 4872), which modified key provisions of H.R. 3590 (collectively referred to as the “Acts”). The Acts will significantly change the nation’s health care system. Many of the Acts’ provisions impose new requirements with respect to group health plans or otherwise pertain to health insurance policies and programs that bear upon employee benefits programs. - April 21, 2010 - EPA’s Renovation, Repair, and Painting Program: Strict New Regulations for Renovations Involving Lead-Based Paint Become Effective April 22, 2010 - EPA’s Renovation, Repair, and Painting Program: Strict New Regulations for Renovations Involving Lead-Based Paint Become Effective April 22, 2010
Beginning April 22, 2010, building contractors, residential property managers, specialty trade contractors, and numerous other building industry professionals will be subject to new, comprehensive regulatory requirements governing renovation, repair, and painting projects with the potential to disturb lead-based paint. - April 6, 2010 - Performance and Payment Bond for Public Project Deemed Discretionary - Performance and Payment Bond for Public Project Deemed Discretionary
In the much-publicized "Kenwood Towne Place" litigation in Cincinnati, Ohio, which involves over $40 million in lien claims, presiding Judge Beth Myers recently issued a Decision and Entry that disposed of subcontractor claims against the Port Authority of Greater Cincinnati (the Public Authority involved with the project). The Court dismissed the subcontractors’ claims for takings and negligence. One aspect of Judge Myers' decision makes it glaringly important for contractors of all shapes and sizes to perform independent assessments of front-end protection on a public project: the Court determined that the requirement of a performance and payment bond (or lack thereof in this case) was a matter of discretion for the Port Authority and, consequently, not mandatory under Ohio law. - April 1, 2010 - 2010 Health Care Reform Legislation – Tax Highlights - 2010 Health Care Reform Legislation – Tax Highlights
On March 23, 2010, President Obama signed into law the “Patient Protection and Affordable Care Act” (H.R. 3590). One week later, on March 30, 2010, the President signed into law the “Health Care and Education Affordability Reconciliation Act” (H.R. 4872), which modified key provisions of H.R. 3590. The two Acts together will significantly change the nation’s health care system. To pay for these changes, a number of new taxes and fees are imposed on businesses and individuals, with staggered effective dates over the next eight years. This Client Alert provides a summary of the most significant tax-related changes of this landmark health care reform legislation. Future Client Alerts will cover other aspects of this legislation and related regulatory guidance, including a forthcoming Alert dealing with Employee Benefit Plans. - March 30, 2010 - Supreme Court of Ohio Rules Employer Intentional-Tort Reform Constitutional - Supreme Court of Ohio Rules Employer Intentional-Tort Reform Constitutional
A year after hearing oral arguments on three appeals related to the employer intentional-tort statute, R.C. 2745.01, where Ohio lawmakers attempted to redefine the common-law claim, the Supreme Court of Ohio determined that R.C. 2745.01 does not violate the Ohio Constitution and does not conflict with the General Assembly’s legislative authority to compensate for workplace injuries or occupational diseases through compulsory employer contributions into a statewide workers’ compensation fund. In the first of the three cases argued, Klaus v. United Equity, Inc., ___ Ohio St.3d ___, 2010-Ohio-1014, __ N.E.2d ___, Ulmer & Berne LLP successfully defended a grain operator before the trial court but the Third Appellate District found a “genuine issue of material fact” existed as to whether the operator believed that the worker’s injury was “substantially certain to occur,” even though the worker admitted that the injury was an accident. After determining in Kaminski v. Metal & Wire Prods. Co., ___ Ohio St.3d ___, 2010-Ohio-1027, __ N.E.2d ___, and Stetter v. R.J. Corman Derailment Servs., L.C., ____ Ohio St.3d ___, 2010-Ohio-1029, ___ N.E.2d ___, that the statute was constitutional, the Court reversed and remanded Klaus, directing the Court of Appeals to consider whether the worker’s injury came within R.C. 2745.01’s definition of “substantially certain”: i.e., that the employer acted “with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” - March 24, 2010 - Ohio Department of Development Announces Grant Funding for Energy Efficiency Projects - Ohio Department of Development Announces Grant Funding for Energy Efficiency Projects
Last week, the Ohio Department of Development (ODOD) announced the availability of $8,000,000 in grant funding for qualifying energy efficiency projects undertaken at existing multi-family, commercial, and institutional buildings. The goal of the program is to encourage the purchase and installation of energy efficiency equipment that will measurably improve the energy efficiency of existing multi-family, commercial, and institutional buildings. The program is competitive, and awards will range from $125,000 to $1,000,000 per project. - March 23, 2010 - Highlights of the 2010 HIRE Act (aka the Jobs Bill) - Highlights of the 2010 HIRE Act (aka the Jobs Bill)
On March 18, 2010, President Obama signed into law the “Hiring Incentives to Restore Employment Act.” The centerpiece of the Act is a payroll tax holiday for employers who hire unemployed workers (plus an employer income tax credit if the new hires are retained for at least one year). The Act also extends the enhanced Section 179 expensing rules for 2010, makes important changes for tax credit bond issuers, and creates new provisions to combat offshore tax evasion. This Client Alert provides a summary of these new provisions. - February 26, 2010 - New Proxy Rules Effective February 28 - New Proxy Rules Effective February 28
The Securities and Exchange Commission’s (SEC) new rules governing proxy disclosures will take effect on February 28, 2010. The rules dictate enhanced disclosures in proxy statements on corporate governance and executive compensation, among other things. The rules, which can be viewed at http://www.sec.gov/rules/final/2009/33-9089.pdf, govern all proxy statements, annual reports, and registration statements filed after the effective date. - February 19, 2010 - Sweeping Regulations Implementing New Massachusetts Data Security Law Effective March 1, 2010 - Sweeping Regulations Implementing New Massachusetts Data Security Law Effective March 1, 2010
All Businesses Possessing Personal Information on Massachusetts Residents Are Subject to the Law
Massachusetts’ new regulatory Standards for the Protection of Personal Information of Residents of the Commonwealth, 201 CMR 17:00 et seq. take effect March 1, 2010. The regulations, which are among the most sweeping in the nation, require all businesses that own, license, maintain, or store personal information of a Massachusetts resident, including investment advisers, private fund managers, and other financial services providers, to safeguard that personal information. The Standards apply to personal information maintained on paper, as well as electronic information stored on a computer system or a portable device, transmitted across a public network, or maintained on a system connected to the Internet. - February 11, 2010 - Estate Tax Repeal for 2010 - Estate Tax Repeal for 2010
As you are probably aware, the federal estate and generation skipping taxes have been repealed as of January 1, 2010. Unless Congress acts, or makes any changes that are retroactive to January 1, 2010, these taxes will remain repealed until 2011. On January 1, 2011, they are reinstated, but with the exemptions dropping back to $1 million and the top tax rate rising to 55 percent. For decedents dying in 2009, the exemption was $3.5 million and the top tax rate was only 45 percent. - January 29, 2010 - Changes to Title V of the Gramm-Leach-Bliley Act Offer Powerful New Tool for Consumer Privacy Disclosures - Changes to Title V of the Gramm-Leach-Bliley Act Offer Powerful New Tool for Consumer Privacy Disclosures
Financial institutions now have a powerful new tool for consumer privacy disclosures due to recent changes to privacy rules under Title V of the Gramm-Leach-Bliley Act (“GLBA”). This new tool – a fill-in-the-blank model form (the "Form") – replaces the lengthy model disclosure clauses (“Model Clauses”) which financial institutions have relied on for years. Similar to the Model Clauses, the Form describes an institution’s privacy policies and provides a means for consumers to opt-out of information sharing. While use of the Form is optional, the various federal agencies which developed and issued the rules (“Agencies”) have established a powerful incentive to use it: a safe harbor against claims of noncompliance with disclosure requirements. This Client Alert describes the changes and weighs the benefits and costs to a typical company in connection with implementing the Form. - January 25, 2010 - U.S. Supreme Court Opens Door for Corporate and Union Spending to Support Political Candidates - U.S. Supreme Court Opens Door for Corporate and Union Spending to Support Political Candidates
A recent U.S. Supreme Court decision, Citizens United v. Federal Election Commission, will give corporations and labor unions expansive new rights to influence federal, state and local elections. In a 5-4 decision issued on January 21, 2010, a majority of the Court invalidated a longstanding law that restricted independent corporate and union spending in support or opposition of congressional or presidential candidates. The decision left untouched prohibitions of direct corporate or union contributions to federal candidates. - December 23, 2009 - U.S. House of Representatives Passes the Wall Street Reform and Consumer Protection Act - U.S. House of Representatives Passes the Wall Street Reform and Consumer Protection Act
On December 11, 2009 the U.S. House of Representatives passed, by a 223-202 vote, the Wall Street Reform and Consumer Protection Act (the Act), a comprehensive overhaul of the U.S. financial system intended to remedy the deficiencies which allowed the U.S. economy’s historical failure. The Act would implement many of the changes recommended in President Obama’s recently released white paper entitled “Financial Regulatory Reform: A New Foundation.” Below are some of the most important changes. - December 10, 2009 - U.S. Government Announces Changes in Immigration Law - U.S. Government Announces Changes in Immigration Law
The federal government recently announced several changes to U.S. immigration legislation. Two key topics involve increased enforcement efforts of the Immigration and Customs Enforcement (ICE) and changes in request for prevailing wage procedures. We have summarized these recent developments below. - November 13, 2009 - Local County Auditor Suggests Commercial Property Values May Stay Flat - Local County Auditor Suggests Commercial Property Values May Stay Flat
As you have heard by now, the local County Appraiser is performing an update of all real property values in Cuyahoga County and in certain surrounding counties for the 2009-2011 triennium. The prognosticators have suggested that commercial property values may stay flat or may decrease slightly, but likely will not fall in lockstep with the recent decline in residential values which averaged around 8 percent countywide (higher or lower depending upon the community). - November 11, 2009 - Sunbelt: Emerging Opportunity for Enforcement of Restrictive Covenant in Illinois - Sunbelt: Emerging Opportunity for Enforcement of Restrictive Covenant in Illinois
In Sunbelt Rentals, Inc. v. Ehlers, the Appellate Court of Illinois, Fourth District overturned 34 years of precedent in holding the “legitimate business interest” test invalid in connection with the enforcement of restrictive covenants. Instead, the court held that covenants should be analyzed based solely on whether they are reasonable from a time and
territory perspective. - November 9, 2009 - Ulmer & Berne’s Financial Services Group Announces Strategic Expansion Through Its Chicago Office - Ulmer & Berne’s Financial Services Group Announces Strategic Expansion Through Its Chicago Office
Ulmer & Berne LLP is pleased to announce the addition of four financial services attorneys to the Firm's Chicago office, furthering the Firm’s strategic expansion in the Chicago market and throughout the Midwest. Joining the law firm are partners Randy Lehner, Scott Meyers, David Porteous and associate Jim Martignon. - November 5, 2009 - “Red Flag” Update: Rules Compliance Deadline Delayed to June 1, 2010 by FTC - “Red Flag” Update: Rules Compliance Deadline Delayed to June 1, 2010 by FTC
The Federal Trade Commission (FTC) has delayed the compliance deadline for its Red Flag rules governing identity-theft prevention an additional seven months, to June 1, 2010. These rules require many businesses to prepare and implement written identity-theft prevention policies and programs to identify warning signs of actual or potential identity theft (i.e., “red flags”), detect red flags, prevent identity theft, and mitigate the consequences of identity theft. - October 29, 2009 - Ulmer & Berne Attorney Scott A. Meyers Featured on Bloomberg TV – Discusses Galleon Insider Trading Scandal - Ulmer & Berne Attorney Scott A. Meyers Featured on Bloomberg TV – Discusses Galleon Insider Trading Scandal
Scott A. Meyers, a securities litigation partner in Ulmer & Berne LLP’s Chicago Office, was a featured guest on Bloomberg TV on October 22nd, discussing the insider trading scandal at embattled hedge-fund Galleon Group. - October 1, 2009 - Mandatory Greenhouse Gas Reporting – Is Your Facility Covered? - Mandatory Greenhouse Gas Reporting – Is Your Facility Covered?
Beginning January 1, 2010, large emitters of greenhouse gases (GHGs) will be required to collect and report their GHG data to US Environmental Protection Agency (EPA). An estimated 85 percent of the nation’s GHG emissions, from approximately 10,000 facilities, will be covered by the new reporting program. To determine whether your facility is covered, you must determine whether your company emits any GHGs above the threshold carbon dioxide equivalent and whether your facility falls within one of the regulated industries. - August 18, 2009 - TARP Recipients Slow in Adopting Excessive or Luxury Expenditures Policy - TARP Recipients Slow in Adopting Excessive or Luxury Expenditures Policy
Recipients that still retain Troubled Asset Relief Program (TARP) “investments” must each adopt an Excessive or Luxury Expenditures Policy (Policy) by September 14, 2009 and publish the Policy on its website. To date, few banks that retain TARP money have posted their Policy. - August 7, 2009 - Ohio’s Budget Bill Introduces New Markets Tax Credit Program - Ohio’s Budget Bill Introduces New Markets Tax Credit Program
The Ohio Budget Bill signed by Governor Ted Strickland on July 17 contained provisions authorizing Ohio’s first state-run New Markets Tax Credit program (Program). Modeled after the federal New Markets Tax Credit (Federal Credit), the Program allows up to a nearly $1 million cumulative, nonrefundable tax credit for an entity that holds an investment in a “qualified community development entity” over the next seven years. Like the Federal Credit, the Program is intended to aid development in low-income areas where new projects are typically more difficult to finance. - August 5, 2009 - Obama Administration Proposes New Legislation to Regulate Financial Institutions - Obama Administration Proposes New Legislation to Regulate Financial Institutions
President Obama recently released a white paper entitled “Financial Regulatory Reform: A New Foundation,” proposing the most comprehensive regulatory reform to the U.S. financial system in decades. The Obama Administration submitted proposed legislation to Congress on July 22 and 23 that would implement the white paper’s proposed reforms. Notably, the proposed legislation would (i) create the Financial Services Oversight Council (Council); (ii) designate the Federal Reserve (Fed) as the regulator for financial institutions that pose a systemic risk to the financial system (Tier 1 financial holding companies (FHCs)); (iii) create one national regulator to oversee all national banks; (iv) increase regulatory standards for FHCs; (v) eliminate exemptions in the Bank Holding Company Act of 1956; (vi) change regulations for critical markets, such as securitization and clearing; and (vii) establish a framework for the federal government to prevent significant non-bank financial institutions from failing. - July 31, 2009 - “Red Flag” Update: Rules Compliance Deadline Delayed to November 1, 2009 by FTC - “Red Flag” Update: Rules Compliance Deadline Delayed to November 1, 2009 by FTC
The Federal Trade Commission (FTC) has delayed by three more months the compliance deadline for its Red Flag (identity theft prevention) rules. The new deadline is November 1, 2009. These rules require many businesses to implement written identity theft prevention policies and programs to design and identify warning signs of actual or potential identity theft (i.e., “red flags”), detect those red flags, prevent identity theft and mitigate the consequences of identity theft, and regularly update the policy and program.
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