Category Archives: Treatise

Treatise Update: Fragomen on Immigration Fundamentals

Offering in-depth coverage of bedrock immigration legislation, the latest USCIS rules and programs, and pivotal court decisions, Fragomen on Immigration Fundamentals: A Guide to Law and Practice (Fifth Edition) provides the legal and procedural knowledge to work more efficiently and effectively with employers, noncitizens, nonimmigrants, refugees, naturalized citizens, and government officials.

The latest release for Fragomen on Immigration Fundamentals updates the following chapters:

Among the new developments covered in this release are:

  • Public charge determinations: The Trump administration has implemented strict new standards for determining whether an adjustment applicant or immigrant visa applicant is, or is likely to become, a public charge. The new rules require officials to weigh a number of factors rather than reviewing only the sponsor’s financial information, and lengthen the list of public benefits to be considered in the review. New section 3:4.3[F], Public Charge Determinations.
  • Southwest border crisis: In August 2019, DHS and HHS issued a new rule relating to the detention of minors, which, in their view, terminates the Flores agreement. The rule creates an alternative licensing scheme that allows the detention of families together in the same facility; states that the criteria governing the parole of persons in expedited removal proceedings apply to minors, as well as to adults; and states that bond redetermination hearings are only available to minors in regular, not expedited, removal proceedings. Section 7:5.7[A], Trump Administration Policies.
  • Asylum claims: The USCIS and EOIR issued a joint rule in July 2019 that bars asylum claims by individuals who enter or attempt to enter the United States across the southern land border after failing to apply for protection from persecution or torture while in a third country through which they transited. That same month, a California district court issued a nationwide preliminary injunction, but the Ninth Circuit limited the reach of the injunction to cases arising within that circuit. New Section 6:2.6[C][7], Failure to Apply in Safe Third Country.
  • Expedited removal: Pursuant to new directive, in July 2019, Acting Secretary McAleenan designated for expedited removal two additional categories of persons. Section 7:5.6[A], Classes of Individuals Subject to Expedited Removal.

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact LibraryRelations@pli.edu.

Treatise Update – The Securities Law of Public Finance

This two-volume resource, cited by the SEC for its excellence in illuminating legal issues, clarifies and analyzes how federal securities laws and regulations apply, directly and indirectly, to securities issued by state and local governments.

The Securities Law of Public Finance is a valuable resource for bond lawyers, municipal officials, underwriters, broker-dealers, investment advisers, regulators, and anyone else involved in the business of financing the activities of state and local government.

The key updates to the Securities Law of Public Finance include:

  • New Chapter – Regulation of Municipal Broker-Dealers in Private Placements: New chapter 10B, by Paul S. Maco, deals with private placements, which developed as a form of transaction to avoid the registration requirements of section 5 of the Securities Act of 1933. Such transactions, while exempt from registration, are subject to the remaining provisiions of the Securities Act, including its civil liability and antifraud provisions as well as the antifraud provisions of section 10 of the Securities Exchange Act of 1934 and Rule 10b-5. The discussion provides a brief overview of the broad reach of federal securities law and the requirement for registration as well as antifraud proscriptions, the availability of class and transaction exemptions from registration but not antifraud provisions through private placements, and the application of the antifraud provisions and broker-dealer law to placement agents.
  • Lorenzo decision – Dissemination of New Issue Offering Documents: In March 2019, the Supreme Court held in Lorenzo v. Securities & Exchange Commision that a defendant who disseminates the material misstatement of another—and thus cannot be liable under the second subsection of Rule 10b-5 for “making” the statement—can nevertheless be liable under other provisions of the securities laws that proscribe “any device, scheme, or artifice to defraud.” The release discusses some possible implications for public finance, including the dissemination of preliminary and final official statements. See new § 6:4.2.
  • Duties of underwriters’ counsel – Underwriters’ Due Diligence on New Issues of Municipal Securities: In addition to being familiar with applicable law and codes of ethics, lawyers expecting to serve as underwriters’ counsel should become familiar with the SIFMA Model Memorandum to Underwriter’s Counsel and the NABL Model Letter of Underwriters’ Counsel. There are a number of differences in approach between the two model documents that underwriters’ counsel may need to address early in its representation of the underwriters to avoid misunderstanding. See new § 7:5.1[D][2].
  • Continuing disclosure—duty to correct and duty to update – Continuing Disclosure: A duty to correct arises when a statement intended for the investing market, such as an official statement, contains an incorrect statement that, at the time the statement was made, the issuer believed to be true, but subsequently discovered new information reveals that the statement made was incorrect and material. The duty to update applies where a correct statement is said to become inaccurate after it is made because of new circumstances. New material in the release elaborated upon the distinction, discussing the differing approaches among the circuits in defining and imposing duties. See § 9:3.2.

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

Treatise Update: Friedman and Smith on Contracts and Conveyances of Real Property

The Business Lawyer calls this PLI title “The ‘bible’ for any lawyer handling a real estate conveyance.” providing more than 140 sample forms, sample forms, sample clauses, and checklists that simplify and accelerate transactions, Friedman and Smith helps readers to carefully consider all the issues and options before finalizing a contract. This definitive resource gives guidance on how to handle unexpected problems and contingencies before they become deal-breakers; factor in a relevant case law when structuring sound agreements; and avoid drafting ambiguous or incomplete contracts that can lead to delays and aborted deals.

Highlights of this latest update of Friedman and Smith on Contracts and Conveyances of Real Property include:

  • Chapter 3, Assignments of Contracts. New discussion covers the rights of an assignee against the seller if the seller fails to perform a promise to the buyer included in the contract of sale (see section 3:2.4).
  • Chapter 14, Marketable Title. New discussion of Loring v. Whitney, 46 N.E. 57 (Mass. 1987), which illustrates how courts deal with drawing the line between litigation risk that is substantial versus too remote (see section 14:1.2).
  • Chapter 19, Easements—Creation. New discussion of the distinctions between easements appurtenant and easements in gross, including court-developed tests in cases of ambiguity (see section 19:3).
  • Chapter 22, Covenants—Scope and Termination. New discussion of eminent domain reviews the majority and minority views on whether restrictive covenants are property for takings purposes (see section 22:2.12).
  • Chapter 24, Contract Remedies for Seller Default. New discussions cover challenges to specific performance as a workable remedy for the buyer when the seller has problems with the title (see section 24:44.2), and review the viability of specific performance as a remedy for part of a contract and not for the remainder because the remainder is impossible to perform or the matter is one into which equity will not venture (see section 24:4.3).
  • Chapter 25, Time for Performance. Updated discussion of the “time of the essence” doctrine, including “time is of the essence” as an implied term and the consequences when time is essential and when time is not essential (see sections 25:2.1-25:2.4).
  • Chapter 26, Deed Elements. Updated discussion covers transfer tax, which is payable upon the recordation of a deed, triggering a requirement that the grantee report the amount of consideration to the reocording office that becomes part of the public record, which allows a title searcher to determine the parties’ reported consideration (see section 26:4).

This essential treatise is available on PLI PLUS. If you would like to purchase a print copy, please email libraryrelations@pli.edu.

New Edition! Master the 8-K

Master the 8-K is one of the publications in PLI’s SEC Compliance and Disclosure Series. This clear, concise, and comprehensive guide to filing the SEC’s Form 8-K is a tool that every securities lawyer or person who is responsible for a company’s periodic SEC reports will want to have close at hand. With sample disclosure language and detailed appendices containing the Form 8-K itself, key regulations, SEC compliance and disclosure interpretations (C&DIs), this title is a stand-alone resource for anyone seeking to master the 8-K.

In this easy-to-use book, each Form 8-K Item is separately analyzed and begins with “highlights” that, at a glance, alert you to critical matters about that Item, such as whether the “safe harbor” applies, whether there are exhibit requirements, whether there are possible update requirements, and whether there are critical definitions to consider. Each section then provides step-by-step instructions and expert practice tips.

This updated new edition of Master the 8-K provides current guidance primarily designed to address the SEC’s 2018 and 2019 rule changes that were intended to modernize and simplify disclosure requirements, such as:

  • Permitting omission of schedules and attachments from many exhibits;
  • Streamlining the rules for incorporation by reference; and
  • An innovative new approach to confidential treatment, which allows companies to redact confidential information from exhibits without the need to submit formal confidential treatment requests.

This treatise is available on PLI PLUS. If you would like to purchase a print copy, please email libraryrelations@pli.edu.

2020 Edition! International Tax Controversies

International Tax Controversies is a practical guide to handling international tax audits and appeals, government-to-government cooperation and special dispute resolution mechanisms, and litigating international tax cases. Disputes with the IRS regarding international tax issues often present special issues in addition to those normally relevant in purely domestic tax controversies.

For example, questions may arise regarding the application of attorney-client privilege and other protections in the cross-border context. Where relevant documents, witnesses, and other information are held abroad, special procedures may be applicable. In addition, special dispute resolution mechanisms may be available in international tax disputes involving tax treaties and transfer pricing. Taxpayers should also be aware of the potential impact on the competent authority process of entering into closing agreements. Finally, country-by-country reporting data will be changed by the United States pursuant to bilateral competent authority arrangements (CAAs) entered into in connection with tax treaties and TIEAs that permit automatic exchanges of information.

International Tax Controversies explores these and other relevant issues in international tax cases, in addition to the issues and procedures that commonly arise in U.S. federal tax audits (whether or not focused on international issues).

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

Technology Transactions Update

Technology Transactions: A Practical Guide to Drafting and Negotiating Commercial Agreements is an indispensable guide to drafting, reviewing, and negotiating technology transaction agreements. Editor Mark G. Malven, with more than twenty years of experience handling thousands of tech transactions and representing customers as well as technology vendors, combines his legal expertise and that of eleven other contributors from the legal and business worlds to deliver streamlined, practical, easy-to-access guidance.

This release presents the latest developments in the field, affecting most of the chapters in the book. Among the changes are:

  • Chapter 10, Information Security Agreements: This new chapter covers the drafting, review, and negotiation of information security (“InfoSec”) agreements. InfoSec agreements have become more prevalent in service provider relationships as a result of the explosion of electronic data coupled with increasing legal and regulatory risk associated with privacy breaches. InfoSec agreements go beyond the basic limitations on use and disclosure of confidential information covered by NDAs, for example, by imposing specific obligations for each information type covered, imposing obligations as to how the recipient must safeguard information, and allowing for audits of the recipient’s treatment of information. A sample InfoSec agreement is included.
  • Chapter 21, Enforcement of Online Terms and Conditions: This new chapter provides an introduction to enforceability considerations when drafting online terms and conditions, including browsewrap, clickwrap, and in-box contracting. It includes discussion of arbitration clauses in such contexts.
  • Chapter 17, Privacy: HIPAA and Business Associate Agreements: New section 17:6, Enforcement Actions, discusses recent enforcement activity by the U.S. Department of Health and Human Services Office for Civil Rights (OCR), including an action against the University of Texas MD Anderson Cancer Center for violations arising from the loss of a laptop computer and two thumb drives, each of which stored unencrypted PHI, resulting in the OCR’s imposition of $4.3 million in penalties, and another action against Anthem, Inc. pertaining to the unauthorized disclosure of nearly 80 million unencrypted patient records, resulting in a resulting in a resolution agreement with a settlement of $16 million, the highest settlement amount to date associated with an OCR-enforced unauthorized disclosure matter.

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

Treatise Update: Trade Secrets

Trade Secrets: A Practitioner’s Guide is an indispensable resource that discusses all aspects of protecting trade secrets. It covers what a trade secret is, how it should be protected, and what to do when its secrecy is compromised. Trade Secrets examines in detail what trade secret misappropriation is, how can you prove it in court, how you can protect trade secret information during the course of litigation, and how you can gain appropriate legal and monetary remedies for clients for proven violations. It compares and contrasts trade secret protection with other forms of intellectual property such as copyright, patents, and trademarks.

This release updates and expands the text with new discussions of the law of trade secrets and related topics, including the following:

  • State statutory preemption of common law: The Fifth Circuit, reversing the district court in material part, held that the Louisiana Uniform Trade Secrets Act does not preempt civil law claims for conversion of information that does not constitute trade secrets (Brand Services, L.L.C. v. IREX Corp.). See § 1:5.5, at note 60.1.
  • Patent versus trade secret: In SAP America, Inc. v. Investpic, LLC, the Federal Circuit held that allegedly novel ideas for applying statistical techniques to financial information were unpatentable abstract ideas. If they were protectable at all, they were protectable as trade secrets. See §2:3.4, at note 87.40.
  • Secrecy: In CPI Card Group, Inc. v. Dwyer, the federal district court in Minnesota found that plaintiff CPI did not assure secrecy in emails that included alleged trade secrets. Although it could point to general measures it took to protect confidential information, “CPI has not shown a likelihood of proving that it took reasonable measures to protect the secrecy of the contents of this particular presentation.” See §4:13.1, at note 107.1.
  • Jury instructions: On December 6, 2018, the Florida Supreme Court approved changes in standard form jury instructions for trade secrets misappropriation cases; the new instructions are reproduced in chapter 12. See § 12:11.2, at note 127.1.
  • Remedies—disgorgement: In Texas Advanced Optoelectronic Solutions, Inc. v. Renesas Electronics America, Inc., the Federal Circuit held that a trade secret owner did not have the right to have a jury decide its claim for disgorgement of profits as a remedy for misappropriation. See § 13:3.5, at note 324.14.

This treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

Updated for 2019! Corporate Political Activities Deskbook (2019 Edition)

Corporate Political Activities Deskbook provides a thorough grounding in the law of federal and state campaign finance, pay-to-play, lobbying, and gift compliance. It serves as a practical manual for attorneys who advise corporations about involvement in the political process.

Among the updates in this edition the 2019 Edition are the following:

This Deskbook is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

Treatise Update: Faber on Mechanics of Patent Claim Drafting

More patent applications are rejected because of claim drafting flaws than because of problems with inventions. A trusted working tool for more than two decades, Faber on Mechanics of Patent Claim Drafting spotlights proven claim drafting practices and techniques that have been firmly established by patent authorities and custom. Faber on Mechanics of Patent Claim Drafting also provides full coverage of U.S. Supreme Court and other court decisions critical to claim drafting.

In the latest release, author Robert C. Faber updates and expands his treatise with practical information and commentary on a variety of issues affecting patent claim drafting. Among the topics covered are the following:

  • Patent Office guidance: In November 2018 and January 2019, the USPTO issued updated guidance memorandums for examiners and administrative patent judges relating to (1) subject matter eligibility of patent claims under 35 U.S.C. § 101 and (2) examination of functional claim limitations under 35 U.S.C. § 112. The author highlights important points from these documents. See Chapter 1. Statutory Provisions—Some Basic Principles.
  • Preamble: The Federal Circuit notes that a preamble limits the invention if it recites an essential structure or step or is necessary to give life, meaning, and vitality to the claim. A preamble is not limiting when a patent claim defines a structurally complete invention in the claim body, which is after the preamble, and the preamble only states a purpose or intended use for the invention claimed (Acceleration Bay, LLC v. Activision Blizzard Inc.). See Chapter 2. Claim Forms and Formats in General.
  • Indefiniteness: According to a federal district court in Texas, when the specification has two different meanings for the same word or term, and the claim includes the different meanings for that word or term, the claim thereby lacks sufficient “objective boundaries,” so that the claim is indefinite and invalid (Intellectual Ventures LLC v. T-Mobile USA, Inc.). See Chapter 3. Apparatus or Machine Claims.
  • Claim differentiation: According to the Federal Circuit, if a dependent claim contains additional limitations not present in the independent claim, then—under the doctrine of claim differentiation—the limitations cannot be applied to limit the independent claim, since the specification does not limit the invention to those additional limitations (Knowles Electronics LLC v. Iancu). See Chapter 8. Nonart Rejections.

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

New Edition! Net Leases and Sale-Leasebacks

Net Leases and Sale – Leasebacks: A Guide to Legal, Tax and Accounting Strategies covers every aspect of the ownership, financing, documentation, taxation, and accounting for net leases and sale-leasebacks, focusing on those areas where the treatment of net leases and sale-leasebacks differs from the treatment of other forms of real estate investment.

Authored by specialist Ken Miller, this softbound guide, which assumes some basic understanding of the law and practice of real estate acquisitions, provides a detailed discussion of the important concepts underlying real estate investment transactions, as well as a clause-by-clause explanation of the mandatory and optional provisions of a net lease investment agreement.

This treatise title is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.