Category Archives: Treatise Update

New Edition! Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing

PLI Press is proud to announce the publication of Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing (Fourth Edition).

A longtime favorite among PLI customers, this book provides practical advice to help lawyers strengthen their writing skills by “thinking like a writer” as effectively as they already think like a lawyer. It highlights guiding principles for writing clearly about complicated material and establishing credibility with demanding readers, and then turns those principles into specific techniques that apply to many types of documents and audiences.

Part I introduces the approach and principles that can guide lawyers in “thinking like a writer.”
Part II applies the guiding principles to a document’s organization.
Part III applies guiding principles to specific types of legal writing: letters, memoranda, and emails; briefs; and judicial opinions.
Part IV applies the principles to the smaller scale of paragraphs and sentences.
Part V applies the principles to the editing process, for both self-editing and editing the work of others.

Throughout, chapters include before-and-after examples to demonstrate how writing and editing can be improved by following the advice offered in the book.

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Treatise Update: Proskauer on Privacy

Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age provides essential guidance to organizations on how to develop compliance programs, ensure data privacy and security, prevent cybercrime, and avoid or minimize fines, penalties, litigation, damages, and negative publicity.

Updated content from the new release includes:

Chapter 3, Medical Privacy, notes proposed changes to the HIPAA Privacy Rule to support individuals’ engagement in their care, remove barriers to coordinated care, and reduce regulatory burdens on the health care industry.
Chapter 9, Workplace Privacy, updates discussion of privacy concerns regarding COVID-19 infections; cannabis screening of employees and potential hires; use of biometrics; and recent NLRB rulings.
Chapter 13, Canadian Privacy Law, adds discussion of the statutory tort of invasion of privacy enacted in British Columbia, Saskatchewan, Manitoba, and Newfoundland; proposed amendments to PIPEDA under Bill C-11, which takes some lead from the GDPR; and proposed amendments to Quebec’s PIPA.
Chapter 17, Data Breach Litigation, incorporates summaries of recent significant data breach litigation, and expands circuit-specific discussions of the courts’ approaches to various issues including standing, causes of action, and damages.

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Treatise Update – Langer on Practical International Tax Planning

Langer on Practical International Tax Planning (Fifth Edition) provides current knowledge and expert advice attorneys need to help clients capitalize on ripe tax havens and financial centers. Stocked with case studies that illustrate sound planning approaches, this book delivers the latest word on the legal, tax, business, financial, social, political, technological, geographical, and regional factors to consider when developing and implementing customized planning strategies for clients.

Highlights from the fourth release of the Fifth Edition include:

Revised section on Dual Nationality explains that when a taxpayer works in the United States and another jurisdiction, it presents challenges under the Social Security system, including double taxation, incomplete coverage, or loss of continuity of coverage (see section 11:4.1).
Revised section on Foreign Bank Account Reporting (FBAR) Rules discusses how a “willful violation” of the FBAR reporting requirement includes both knowing and reckless violations, even though more is required to sustain a criminal conviction for a willful violation of the same requirement; in sum, “willfulness” includes “recklessness” (see section 30:2.3).
New section on Sale or Exchange of Partnership Interest explores regulations issued in November 2020, which (1) retain the ten-year exception as an exception to the determination of deemed sale effectively connected gain and loss; and (2) provide rules for the sourcing of deemed sales gain and loss (see section 34:3.2[E]).
New section on Foreign Life Insurance Companies examines the domestic asset/liability percentages and domestic investment yields needed by foreign life insurance companies and foreign property and liability insurance companies to compute their minimum effectively connected net investment income under section 842(b), for tax years beginning after December 31, 2018 (see section 43:2.1[D]).

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Treatise Update: Equipment Leasing– Leveraged Leasing

Equipment Leasing−Leveraged Leasing (Sixth Edition) provides readers with the comprehensive legal, tax, economic, accounting, environmental, and insurance information and advice they need to develop and implement leasing deals that maximize rewards and minimize risks.

The authoritative treatise was recently updated with new content to bring readers up to date on the cutting edge of the industry. Highlights from the new release (Release 1) include:

Chapter 29: Doing Business Under State Corporation Laws has been fully updated with the latest cases on suits by unqualified foreign corporations, the effect of subsequent qualification, defense of suits, and monetary penalties, as well as cases on doing business in interstate commerce, leasing personal property, and collecting debts.
New Appendix 29A provides state-by-state statutory citations on (1) the penalties imposed upon unqualified corporations that are doing business in the state and (2) the activities that may, or may not, constitute transacting intrastate business so as to require qualification.
New Appendix 29C includes state-by-state statutes and case law on LLCs doing business outside their state of formation, have also been updated.
Chapter 32: Leasing Outside the United States: Pickle, Loss Trapping, Subpart F, and Foreign Tax Credits has been updated with an extensive discussion of new concepts and statutory sections introduced by the Tax Cuts and Jobs Act (TCJA), including: Global Intangible Low Taxed Income (GILTI), Foreign-Derived Intangible Income (FDII), the base erosion and anti-abuse tax (the “BEAT”), the section 163(j) interest expense deduction limitation, and additional provisions impacting leasing transactions.

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New Edition! Healthcare Employment Practice

PLI Press is proud to announce the publication of Healthcare Employment Practice: Policy, Law and Procedure (2021 Edition).

This clear and concise guidebook responds to the complex issues arising from the increasingly fractured and fractious hospital and healthcare environment with examples and details to save time, reduce errors and improve employee satisfaction. The text explores how the system actually operates, and suggests how lawyers, human resource professionals and hospital management teams can improve their outcomes through astute planning and careful drafting of agreements.

The 2021 edition includes:

Step-by-step, term-by-term guidance on physician employment contracts, with an emphasis on the problems presented by restrictive covenants, and a full sample Physician Employment Agreement
Labor and employment law as it affects healthcare industry employees
Issues presented by telemedicine
Stark and anti-kickback law compliance

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Treatise Update – Commercial Ground Leases

Commercial Ground Leases (Third Edition) is a definitive guide to drafting, negotiating, and finalizing equitable, error-free leasing documents that address the needs of both landlord and tenant. It features adaptable, time-saving agreement language and contains numerous appendices, including forms of letter of intent, leasehold mortgagee protection clauses, intercreditor agreements, a complete ground lease with many alternative clauses, and more.

Highlights from the latest update (Release #15) include:

Chapter 1, The Truth About Ground Leases. New discussion covers the landlord as partner, including the considerations for tenant/developers and equity sources and institutional mortgage lenders. See section 1:8.
Chapter 1A, Preliminary Agreements and Letters of Intent. Discussion of a well-drafted letter of intent, which should include all the material points to which the parties have agreed and any significant deal points that are potential deal breakers or processes to resolve them. See section 1A:2.2.
Chapter 6, Leasehold Financing. New discussion of mezzanine financing, which has become a feature of commercial real estate for a variety of purposes, including budget shortfalls and short-term needs. See section 6:2.4.
Chapter 7, Bankruptcy. Updated to include discussion of Mission Product Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652 (2019), in which the U.S. Supreme Court held, “Rejection of a contract—any contract—in bankruptcy operates not as a rescission but as a breach” and “leaves intact the rights the counterparty has received under the contract.” See section 7:5.4.

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Treatise Update – Faber on Mechanics of Patent Claim Drafting

Faber on Mechanics of Patent Claim Drafting (Seventh Edition) spotlights proven claim drafting practices and techniques that have been firmly established by patent authorities and custom. This lucid, time-saving handbook offers readers start-to-finish directions for every type of claim, numerous tips on how to avoid common mistakes, definitions and preferred usage of stylized words and phrases in patent law, and more.

The latest release updates and expands this treatise with practical information and commentary on a variety of topics, including:

Software Inventions: New discussion of the Federal Circuit’s decisions in Tenstreet LLC v. DriverReach LLC, Uniloc USA, Inc. v. LG Electronics USA, Inc., Customedia Technologies, LLC v. Dish Network Corp., Ubisoft Entertainment, S.A. v. Oy, and Dropbox v. Synchronoss. See § 1:4.2[A].
Laws of Nature: New analysis of Illumina, Inc. v. Ariosa Diagnostics, Inc., a method of preparation case in which the Federal Circuit found a procedure that exploits natural phenomenon to be patent-eligible. See §§ 1:4.4 and 1:4.6.
Methods of Treatment: New commentary on CardioNet v. Infobionic in which the Federal Circuit has shown that diagnosis techniques involving improved devices or laboratory techniques may be patent-eligible. See § 1:4.6[A].
Preamble: New discussion of Shoes by Firebug LLC v. Stride Rite Children’s Group, LLC in which the Federal Circuit concluded that the “textile” preamble was not limiting because the body of the claim was a structurally complete invention without the preamble but that, in another patent, the preamble was limiting because the body of the claim recited footwear and cited the preamble for an antecedent basis for footwear. Also discussed is Bio-Rad Labs, Inc. v. 10X Genomics Inc. in which the Federal Circuit held that the preamble may not be divided into separate portions but must be read together as a whole. See § 2:4.
“Consisting essentially of”: New analysis of PPG Industries v. Guardian Industries Corp. in which the Federal Circuit said that, despite its indefiniteness, “consisting essentially of” has a definite meaning when used in the description of a composition that includes listed ingredients that follow the phrase. See § 2:6.
Order of Elements: A new section discusses challenging an obviousness rejection premised on the Burhans rule when the prior art does not teach of limitation of the claimed process. See § 3:21.
Use of “Means for” or “Step for”: New discussion of Fiber LLC v. Ciena Corp. and whether the definiteness requirement of section 112(f) is satisfied when a means-plus-function structure is incorporated by reference. See § 3:29.2.

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Treatise Update – Circular 230 Deskbook

The Circular 230 Deskbook is an essential compliance resource for every tax professional who practices before the IRS, helping practitioners comply with complex Circular 230 amendments more easily — and avoid costly penalties and sanctions. This treatise was recently updated to include analysis of the latest developments in tax and estate law relating to IRS Circular 230 including the following:

Discussion of conflicting 2020 decisions on whether a penalty under section 6707A is void if the IRS notice designating the transaction as a listed one is issued without notice and comment in violation of the Administrative Procedure Act (Michigan) or if that argument can only be pursued in a refund action (Arizona) (See Chapter 1 and Chapter 3).
Examination of the difference between the “substantial authority” (having a 40% chance of success on the merits) and “reasonable basis” (where a taxpayer cannot be found negligent if its tax position has a 20% chance of success on the merits) standards under section 6694 (See Chapter 4).

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Treatise Update – Likelihood of Confusion in Trademark Law

Likelihood of Confusion in Trademark Law illuminates the pivotal multiple-factor test, giving readers a strong grasp of the key elements used by the courts to determine if likelihood of confusion exists. Packed with hundreds of real-world examples and updated with every relevant U.S. Court of Appeals decision, this treatise is a must-have reference for trademark specialists and other intellectual property attorneys, and important reading for corporate counsel, generalists, and corporate executives.

This update includes a new addition to the color illustrations in the appendix and new case law integrated into the text throughout. Among the topics addressed in this latest release:

Purposes of trademark law: As summarized by the Supreme Court summarized in United States Patent & Trademark Office v. Booking.com: Trademark protection “secures to the owner of the mark the goodwill of her business and protects the ability of consumers to distinguish among competing producers . . . . Federal trademark protection, supplementing state law, supports the free flow of commerce and fosters competition.” See § 1:2, at note 43.1.
First Amendment concerns—artistic expression cases: According to the Ninth Circuit, the likelihood of confusion test for infringement “ordinarily” strikes “a comfortable balance between the Lanham Act and the First Amendment. That said, where artistic expression is at issue, we have expressed concern that the traditional test fails to account for the full weight of the public’s interest in free expression” (Gordon v. Drape Creative, Inc.). See § 1:8.2, at note 183.1.
Confusion and fair use: The Second Circuit, in Tiffany & Co. v. Costco Wholesale Corp., notes that “a defendant may raise a fair use defense even where the challenged material is likely to cause some confusion.” See § 1:10, at note 244.1.
The multi-factor test in registrability proceedings: The TTAB follows the multi-factor du Pont test of the Federal Circuit, requiring consideration of thirteen factors which must be considered when relevant evidence is of record. See § 2:8, at note 158.1.
Geographic terms: The TTAB says that “geographically descriptive terms are usually accorded less weight” in a confusion analysis, but it distinguishes certification marks. See § 3:4.1, at note 93.1.
Disclaimers: A party’s disclaimer of one portion of its mark may result in the remaining portion being treated as dominant and a source of confusion. See § 4:9.4, at note 272.
Collateral goods: Mark owners in every field commonly apply their brands to collateral items such as mugs and caps distributed as promotional giveaways. Collateral goods may provide significant revenue streams in cases of well-known brands. See § 5:7, at note 75.
Actual confusion: Lack of evidence of actual confusion was not probative, according to the TTAB, where the Board found no “specific geographical areas of overlap between the [parties’] consumer markets” to create opportunities for actual confusion to occur (In re Guild Mortgage Co.). See § 7:7, at note 131.
Bad faith: The Second Circuit observes in Tiffany & Co. v. Costco Wholesale Corp. that “[p]rior knowledge of a senior user’s trademark does not necessarily give rise to an inference of bad faith and may [actually] be consistent with good faith.” See § 8:4.2, at note 125.

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Treatise Update – Public Company Deskbook

Public Company Deskbook: Complying with Federal Governance & Disclosure Requirements provides expert counsel on how to deal effectively with the overlapping legislative, regulatory and private initiatives to reform public company governance and disclosure practices over the past decade.

Written by three partners with Sullivan & Cromwell LLP, this treatise is an indispensable resource for securities practitioners, compliance officers, directors, officers, accountants, auditors, and research analysts, and an important reference for securities regulators.

Highlights from the latest release:

Annual Meeting Timeline and Script updated to reflect the dates relevant to the 2021 proxy season (see Chapter 2A).
Rule 14a-8 Shareholder Proposals updated to reflect lessons learned from 2020 for the 2021 proxy season, including shareholder proposals and SEC no-action relief (see Chapter 2F).
Stock Exchange Annual Reporting and Compliance Certifications and Stock Exchange Interim Reporting and Compliance Affirmations updated to reflect the revised forms of NYSE annual and interim reporting and compliance affirmations (see Chapter 5B and Chapter 5D).
Website Disclosures updated to reflect changes to various required or permitted disclosures (see Chapter 5E).
Private Sector Corporate Governance Recommendations and Voting Policies updated to reflect current voting policies of major institutional investors (see Appendix L).

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