Category Archives: Treatise Update

Treatise Update: Social Media and the Law

Social Media and the Law (2020 Edition) examines the use of social media in a variety of legal contexts, including privacy, civil litigation, employment, criminal activity and prosecution, intellectual property, defamation, advertising, and regulated industries. Relevant legislation, cases, usage trends, and industry responses are discussed.

Among the new developments covered in the 2020 Edition are:

Deepfakes — videos made using a new technology that falsely shows people saying or doing something that they did not say or do. See section 5:4.5.
Boeing standard under the NRLA: In one of the first decisions applying the Boeing standard, the NLRB found an employer’s confidentiality rule presumptively lawful under the first step in Boeing and found unlawful an employee handbook policy that workers should not post “derogatory information about the company” on social media sites and instead should use the normal channels for raising grievances and complaints. See sections 6:4.2[B][2][a] and 6:4.2[B][2][b][ii].
Guidance for financial services industry: In 2019 FINA released new guidance on disclosure innovations in advertising and other communications with the public. See section 7:3.2[A].
Medical Device Vulnerabilities: A draft guidance issued by the FDA in October 2018 recommends medical device manufacturers and healthcare delivery organizations take steps to ensure appropriate security safeguards are in place. See section 7:3.3[D].
Platform Criminality, whereby criminal activities are enabled and funded through data-rich platforms such as Facebook, Amazon and Uber. See section 9:2.11.

Order a print copy today.

PLI PLUS subscribers can access this title through their subscription.

Treatise Update: Post-Grant Proceedings Before the Patent Trial and Appeal Board

Post-Grant Proceedings Before the Patent Trial and Appeal Board guides readers through the process of initiating a post-grant proceeding, taking discovery, seeking sanctions, proposing and opposing claim amendments, effectively advocating at the oral hearing, appealing to the Federal Circuit, and handling a wide array of issues involving co-pending district court litigation.

Updates from Release #10 include:

In Chapter 2, the section on Claim construction discusses changes to the PTAB standard for petitions filed after November 13, 2018, from the broadest reasonable interpretation standard to the Phillips v. AWH Corp. standard used in civil actions and at the International Trade Commission. See § 2:5, at note 57.
In Chapter 3, a section on Standing—real party in interest discusses Applications in Internet Time, LLC v. RPX Corp., in which the Federal Circuit held that “the focus of the real-party-in-interest inquiry is on the patentability of the claims challenged in the IPR petition, bearing in mind who will benefit from having those claims canceled or invalidated.” See § 3:2.3[A], at note 46.
In Chapter 3, the section called Joinder discusses the first case to be taken up by the PTAB’s Precedential Opinion Panel, which determined that, under appropriate and limited circumstances, a petitioner may join its own previously instituted IPR to request joinder and institution of new issues (Proppant Express Investments, LLC v. Oren Technology, LLC). See § 3:6, at note 193.
In Chapter 8, Amendments to claims discusses the notice of proposed rulemaking put forth by the USPTO on October 21, 2019. See § 8:3.1, at note 99.
In Chapter 8, under the section Inter partes review—timelines, a new figure 8-1 depicts the anticipated trial flow of an inter partes review proceeding, depending on whether or not a second, revised motion to amend is filed by the patent owner. See § 8:3.1.
Chapter 14, Appeals to the Federal Circuit includes updated information on the number of PTO appeals filed in the CAFC. See § 14:1, at note 2.

Order your print copy today.

PLI PLUS subscribers can access this title through their subscription.

Treatise Update: Reinsurance Law

Reinsurance Law examines the intricacies of U.S. reinsurance law in the 21st century, giving readers a practical grasp of the purpose, benefits, markets, and costs of reinsurance; the features, operation, and risk-and-return characteristics of the full range of reinsurance products; state, federal, and international regulation of reinsurance; and a full understanding of resolving disputes in the industry. Enhanced with time-saving checklists and numerous sample clauses and sample agreements, this practical treatise covers federal and state law, industry standards, customs, practice—including the Utmost Good Faith and Follow-the-Fortunes doctrines—and relevant case law in clear, straightforward terms.

Highlights from Release #14 of Reinsurance Law include:

Chapter 3: A section on Implied Follow-the-Fortunes Provision addresses whether the follow-the-fortunes doctrine is implied in facultative reinsurance certificates when there is no express working to that effect (see section 3:3).
Chapter 3: A section on Reinsurer’s Obligation Regarding Supplemental Benefits Outside of the Applicable Limits of Liability discusses the Second Circuit decision in Utica Mutual Insurance Co. v. Clearwater Insurance Co., holding that the contracts required payment of expenses in addition to the stated liability limits in the facultative contracts. The ruling was based on form language in the contracts and the absence of language stating that the reinsurer’s liability would be “subject to” the stated limits of liability (see section 3:4).
Chapter 6: A section on Vacating or Modifying the Award explains how before an arbitrator is officially engaged to perform an arbitration, to ensure the parties’ acceptance of the arbitrator is informed, potential arbitrators must disclose their ownership interests, if any, and the arbitration organizations with whom they are affiliated in connection with the arbitration and those organizations’ nontrivial business dealings with the parties to the arbitration (see section 6:9.2).

Order your print copy today.

PLI PLUS subscribers can access this title through their subscription.

Treatise Update: Stocker on Drawing Wills and Trusts

Stocker on Drawing Wills and Trusts (Fourteenth Edition) is a vital planning tool for estates, trusts, and tax planning specialists and any general practitioner involved in crafting wills, trusts or other estate planning documents.

For more than 50 years, attorneys and estate planners have relied on this essential treatise to provide high-quality, comprehensive, field-tested drafting guidance that ensures wills, trusts and other estate planning documents fully express clients’ wishes without provoking costly legal challenges.

Enhanced by hundreds of labor-saving sample forms and clauses, this title provides guidance on how to help clients capitalize on the full range of tax-saving and non-tax opportunities.

Highlights of Release #4 include:

Chapter 5: Estate Tax and Planning for the Applicable Credit Amount is updated to discuss the inflation adjusted numbers issued by the Service for 2020, and provides updated figures for transfer tax rates, exemption amounts, and the total (federal and state) estate tax top rate.
Chapter 6, Section 4.3[F]: Gift Tax on QTIP Property is updated to explain that a major pitfall for QTIP planning is the surviving spouse’s gifting of a QTIP income interest.
Chapter 10, Section 10: Income Tax Planning for Other Considerations is expanded to examine changes to the Kiddie Tax for taxable years 2018–2025, during which the child’s unearned income will be taxed at the ordinary and capital gains rates applicable to trusts and estates.

Order your print copy today.

PLI PLUS subscribers can access this title through their subscription.

Treatise Update: International Tax & Estate Planning

International Tax & Estate Planning: A Practical Guide for Multinational Investors (Third Edition) presents the clear and practical approach of a person who deals with private wealth, its management and its disposition. In it, one of the nation’s leading multinational investment authorities shows you how to: capitalize on tax-advantaged strategies, protect investments against government expropriation, nationalization, or other extraordinary events, draft problem-free wills and trust documents that secure clients’ interests, and avoid errors in an era of increased regulatory oversight, conflicts of law, and greater demands for financial disclosure.

This title is an indispensable resource for lawyers, private bankers (both investment and commercial), corporate personnel of multinational corporations, accountants, and investment advisers.

This latest release updates the text with the practical information that enables multinational investors (and those who advise them) to protect investments, minimize taxation, maintain confidentiality, and assure proper disposition of assets upon an investor’s death.

A completely revised Chapter 5: Sovereign Risks, Expropriation, and the Act of State Doctrine, explores topics including: what constitutes just compensation; the Foreign Account Tax Compliance Act and Common Reporting Standard; sanctions imposed by the United States on Iran, Russia, North Korea, Venezuela, and Cuba; and questions that can be used to determine whether a constructive taking has occurred.

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

Treatise Update! Directors’ and Officers’ Liability: Current Law, Recent Developments, Emerging Issues (Third Edition)

Directors’ and Officers’ Liability provides a cutting edge, straightforward explanation of the obligations of directors and officers of public companies, the penalties that they face if they fail to meet their obligations, and the protections that are offered them under the law or by agreement. This treatise for corporate counsel, private practitioners, and for directors and officers themselves guides readers through the essentials of the current law, recent developments, and emerging issues of directors’ and officers’ liability. This title covers the sources of law governing the duties of directors and officers; the key facets of board committees; the duties of directors and officers under state corporate law and federal and state securities laws; private civil actions and public enforcement; exculpation, indemnity, and insurance; cybersecurity; contested mergers and acquisitions; Securities Act suits filed in state court; special issues in pharma and biotech; and more.

The highlights for the latest release for Directors’ and Officers’ Liability include:

Emerging Issues: A Revival of Caremark Claims. Two recent decisions, one issued by the Delaware Supreme Court in June 2019 and another issued by the Delaware Court of Chancery in October 2019, herald what might be a new era of shareholders asserting Caremark claims, breach of the duty of loyalty by a failure of oversight, and those claims surviving motions to dismiss. See new section 8:7 and section 3:3.14 for a review of Caremark and analysis of Marchand v. Barnhill and In re Clovis Oncology, Inc. Derivative Litigation.

Federal Forum Exclusive Venue Provisions for Securities Act Claims. In Sciabacucchi v. Salzberg, the Delaware Court of Chancery held that company charter provisions stating that federal courts shall be the exclusive forum for Securities Act class action claims are invalid. See new section 1:4.2 for a history and analysis of jurisdiction over securities class actions under the PSLRA, SLUSA, and the latest Delaware cases.

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

Treatise Update: Initial Public Offerings: A Practical Guide to Going Public (Second Edition)

Providing expert guidance on how to create a winning IPO, Initial Public Offerings: A Practical Guide to Going Public (Second Edition ), is packed with best practices, planning tips, checklists and sample documents to help implements its guidance. Numerous developments—originating from the SEC, FINRA, Congress, and the private sector—continue to shape the IPO landscape. Completely revised and expanded, this latest release (release #7) addresses key changes in legal requirements and market practices of critical interest to IPO companies, lawyers, and market professionals alike.

The latest release for Initial Public Offerings updates many chapters, some of which include:

Among the new developments covered in this release are:

Updated IPO market statistics and outlook, including IPO company metrics (see §§ 1:5 and 21:2 to 21:6, Figures 1-3 to 1-8, and Appendix 20C).
Pre-IPO fundraising, including updated discussion of initial coin offerings (see § 2:8.1[I]) and updated market statistics on the use of various other financing techniques (see § 2:8).
Equity compensation, including updated market data on the terms and size of stock incentive plans (see § 2:6.3[B]) and employee stock purchase plans (see § 4:7); and updated discussion of the tax deferral opportunity presented by section 83(i) of the Internal Revenue Code (see§ 8:4.4).
Updated discussion of estate planning for pre-IPO company executives (see § 8:5).
EGC considerations, including updated adoption rates (by company industry) for key items of relief available to EGCs (see Table 10-2).
Quiet period updates, including the SEC’s proposal to allow any company to engage in “test-the-waters” communications with eligible institutional investors in connection with any registered securities offering (see §§ 11:2.2[E] and 18:8.1) and new examples of quiet-period concerns in IPOs and direct listings (see § 11:3.3[B]).
Form S-1 preparation, including updated discussion of disclosure requirements and illustrative SEC comments (see § 13:2.1), updated prospectus data (see § 13:2.2), and a description of the SEC’s new streamlined procedures for obtaining confidential treatment of eligible portions of material contracts (see §§ 13:2.4 and 16:7).
SEC review, including a summary of the realignment of Corp Fin’s disclosure review program (see § 17:2.2) and updated statistics on the nature and timing of SEC comments on Form S-1 filings (see § 17:3.7, Table 17-3, and Table 17-4).
Public company reporting developments, including updated disclosure requirements and proposed changes to the tests for accelerated filer and large accelerated filer status (see §§ 22:2.1, 22:2.2, and 22:2.3), and recent and proposed rule amendments as part of the SEC staff’s ongoing disclosure effectiveness initiative (see § 22:2.5).

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 on Leases

Friedman on Leases (Sixth Edition) clarifies and analyzes the full range of lease provisions and conceivable landlord-tenant situations to give you unsurpassed practical instruction on how to negotiate and draft airtight agreements that protect your clients’ rights and minimize their liability exposure.

Friedman on Leases includes numerous case decisions with commentary and valuable sample lease clauses and agreements that help practitioners to: draft, negotiate, and amend every essential document involved in commercial leasing, modify lease provisions for the full variety of landlord-tenant arrangements, anticipate and resolve problematic transaction developments, and also avoid drafting errors, including omissions, ambiguities, and fatal terminology.

The latest update to Friedman on Leases (Sixth Edition) continues to provide balanced coverage of tenant and landlord concerns and updates the treatise with the most current legal, regulatory, and compliance requirements and developments. Highlights of Release #8 include:

Chapter 2, The Parties. Updated to include situations where a tenant constitutes a partnership, consisting of two or more parties who are partners under applicable state law (see section 2:1.5).
Chapter 3, The Premises. Updated to include a New York Appellate Division holding that a tenant’s right to “use and enjoyment” is implied, especially if the space is leased for a specific expressed purpose (see
section 3:2.2).
Chapter 5, Rent. Provides a new sample “most favored nation” provision in an office lease (see section 5:7).
Chapter 7, Assignment, Subletting, and Mortgaging by Tenant. Updated to include a Nebraska Supreme Court case that reviewed whether taking possession and paying rent satisfy the statute of frauds so as to make the possessor liable on the lease as an assuming party (see section 7:5.1[C][1][a]).

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

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.