Category Archives: Treatise Update

Treatise Update – Bankruptcy Deskbook

Bankruptcy Deskbook provides readers with practical guidance to help their clients achieve fair remedies and to ensure they avoid legal problems along the way. This essential treatise keeps readers up-to-date on legal developments, analyzing recent Supreme Court, court of appeals and bankruptcy court decisions. It offers step-by-step guidance through the bankruptcy laws, clarifying the purpose, features, mechanics, advantages, and drawbacks of Chapters 7, 11, 12 and 13 in the era of BAPCPA.

The latest release, written by Steven J. Brujic, includes updates, such as:

A new subsection on subchapter V debtors in Chapter 11 cases;
Extension of payments under Chapter 13 reorganization plans as a result of the CARES Act
Recent rulings affecting most major topics in the book including: jurisdiction, avoidance powers, automatic stays, distribution of estate property, claims and interests, discharge and dischargeability of debt, employment of professionals, Chapter 11, and Chapter 13.

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Treatise Update – Copyright Law: A Practitioner’s Guide

Copyright Law: A Practitioner’s Guide(Second Edition) provides up-to-date analysis of court decisions and practical advice for the protection of copyrights. Written by two nationally recognized lawyers who have litigated major copyright cases, including those involving digital forms of communication, this authoritative treatise also includes a useful detailed flowchart using an actual case result to illustrate how damages and profits are calculated.

In the latest update—release #4 (September 2020) , the authors expand the book with discussion of the following topics, among others:

Unprotectable subject matter—government edicts: Government edicts, such as state statutes, ordinances, regulations, and judicial opinions, have long been deemed to be not subject to copyright. See new § 2:7.1[B].
Visual Artists Rights Act—remedies: VARA subjects violators of the attribution and integrity rights to the usual civil remedies for copyright infringement under section 501. See § 4:2.2[A], at note 325.1.
Visual Artists Rights Act—“work of recognized stature”: In Castillo v. G&M Realty, L.P., the Second Circuit held that the work in question must be “of high quality, status, or caliber that has been acknowledged as such by a relevant community.” See § 4:2.2[E], at note 341.
Deposit requirement—websites and website content: The Copyright Office has issued a circular offering guidance on the deposit process for websites and website content. See § 5:2.5, at note 28.
Registration: Resolving a circuit split, the Supreme Court has determined that registration occurs when the Copyright Office issues the certificate of registration and not when a copyright owner submits the application, materials, and registration fee to the Copyright Office. See § 5:3.1, at note 44.
Fair use—transformativeness factor: According to the Fourth Circuit, that the respective “subjective intents” of the creator of the work and of its user differ may not be of particular relevance in the transformativeness inquiry, insofar as those differences do not necessarily result in the creation of “new aesthetics or a new work.” See § 8:4.2[A], at note 86.1.
States’ sovereign immunity: The Copyright Remedy Clarification Act (1990) abrogated state sovereign immunity from actions for copyright infringement. See § 11:7.7, at note 396.

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Treatise Update: Friedman and Smith on Contracts

Friedman and Smith on Contracts and Conveyances of Real Property (Eighth Edition) delivers coverage and analysis of the most current developments in real estate conveyancing to assist attorneys representing parties in the sale of real property in drafting sound agreements. This treatise contains sample forms, clauses, and checklists that simplify and accelerate transactions.

Highlights of this release include:

Chapter 2, Parties to Contract, advises that well-drafted contract consistently describes the name of the seller in all parts of the contract; and cautions that describing the seller’s name as “Owner of record” in the contract may violate the statute of frauds requirement.
Chapter 4, Purchase Price and Consideration, discusses contractsthat provide for a credit to the buyer based on future events; and the distinction between earnest money and a deposit upon a buyer’s default.
Chapter 5, Statute of Frauds, covers the use of promissory estoppel as an alternative to the doctrine of part performance to take a contract out of the statute of frauds; and the trend by some states in recognizing fraud and other tort claims as exceptions to the statute of frauds.
Chapter 7, Property Quality, provides an overview of the various state statutes of limitations and statutes of repose for certain warranty claims.
Chapter 8, Misrepresentations by Sellers and Buyers, discusses seller’s liability for their broker’s misrepresentations.
Chapter 9, Mortgage Financing, covers an “absolute deed,” which is intended as security and gives rise to an equitable mortgage.
Chapter 23, Contract Remedies for Buyer Default, includes a state statute that provides for the forfeiture of the buyer’s payment if the parties agreed that the payment is “earnest money.”
Chapter 27, Deed Execution and Delivery, updated to include a discussion of acknowledgment of a deed.
Chapter 28, Deed Covenants of Title, includes a discussion of Trial v. Dragon, a Texas case where the court refused to apply estoppel to the grantor’s heirs who acquired their interest through their mother’s estate.

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Treatise Update: Bankruptcy Deskbook

Bankruptcy Deskbook (Fifth Edition) keeps readers up-to-date on legal developments, analyzing recent Supreme Court, court of appeals and bankruptcy court decisions. Designed as a primary source for non-specialist attorneys, this concise reference treatise acts as a step-by-step guide through the bankruptcy laws, clarifying the purpose, features, mechanics, advantages, and drawbacks of Chapters 7, 11, 12 and 13 in the era of Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA).

In this release, all fourteen chapters are updated with the most recent rulings affecting bankruptcy practice, along with expanded and clarifying discussions of existing topics. Developments discussed in this release include:

Small Business Cases: The Small Business Reorganization Act of 2019, effective February 19, 2020, created a new form of Chapter 11—the subchapter V case—for small business debtors, offering an alternative form of relief to that provided by the small business case. See Chapter 11.
Domestic Support Obligations: The BAPCPA clarified the circumstances under which an obligation arising out of a marital dissolution is dischargeable by introducing the concept of the “domestic support obligation.” See Chapter 1 and Chapter 9.
Avoidance: The Small Business Reorganization Act of 2019 added a new clause to section 547(b) regarding trustee avoidance actions, the purpose of which is to require the trustee to conduct an investigation into alleged preferences, rather than simply sue anyone who the debtor’s ledger indicates received a payment in the ninety days prior to the petition. See Chapter 6.

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Treatise Update: International Corporate Practice

International Corporate Practice: A Practitioner’s Guide to Global Success provides guidance on building a comprehensive global legal department, including advice on structuring, staffing, and budgeting, as well as the use of foreign legal consultants and outsourcing. This update includes new material designed to enable lawyers, whether in-house or outside counsel, to operate efficiently on the global stage.

Updates from the Release #15:

Chapter 1 contains a new section highlighting twenty trends that will likely have an impact on in-house counsel—from automation to diversity, from skills training to management structure, from partnering with outside counsel to corporate social responsibility, and much more.
Chapter 2 updates the discussion of the privilege in Colombia, emphasizing the penalties that may be imposed for a breach and the factors that are weighed in assessing the seriousness of the breach.
Chapter 3 is updated with current information about major international law firms and new discussion of lawyer referral services.
Chapter 4 includes new coverage of the New York Court of Appeals’ amended Rules for the Licensing of Legal Consultants.
Chapter 6 explores the treatment of U.S. government guidance, published in 2019, as a useful framework for corporate compliance programs. To help prosecutors evaluate the adequacy and effectiveness of compliance programs, the Department of Justice, Criminal Division, released “The Evaluation of Corporate Compliance Programs.”
Chapter 9 provides updated coverage of the legal professional privilege in the United Kingdom.
Chapter 19 discusses money laundering and terrorism financing, including a discussion of the Indian Cosmos Bank cyberheist; the regulation of cryptocurrencies; and the trend for law enforcement to prosecute individuals responsible for the money-laundering violations of their employers, not just the employer corporations.
Chapter 22 is revised throughout, with new discussions of proposed U.S. regulations that would broaden government authority, when adjudicating the admissibility of certain foreign nationals, to determine whether those individuals might become a public charge; the European Union’s creation of a European Labour Authority (ELA); and whether same-sex spouses can qualify as dependents for work authorization purposes.
Chapter 27 provides expanded coverage of international efforts to reduce greenhouse gas emissions from ships, as well as to require use of approved ballast water management systems; the cleanup of contaminated sites in the United Kingdom; and environmental regulation in China, including the 2019 Law on Soil Contamination Prevention and Control.
Chapter 29 adds new material on the cross-border insolvency system created by the Recast EU Regulation, including treatment of an interrelated “group of companies” and the key principles of the 2019 Directive.

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Treatise Update: Employment Law Yearbook 2020

Employment Law Yearbook 2020 provides a comprehensive overview of the most important developments in employment law over the past year, including critical case decisions, legislative changes, government agency actions, and other events of interest to employers, employment and HR professionals, corporate attorneys, and employee advocates.

Major topics in the 2020 edition include:

Wage-and-hour laws and litigation
The Office of Federal Contract Compliance Programs (OFCCP) and related recent developments, compliance initiatives, case law, and settlements
Discrimination based on gender and related characteristics, the Equal Pay Act, and sexual harassment
Discrimination based on race, religion, and national origin
Age discrimination, the Age Discrimination in Employment Act (ADEA), the Older Workers Benefit Protection Act (OWBPA), and related litigation
Equal employment opportunity (EEO) class actions
The Americans with Disabilities Act (ADA)
Employee privacy law and privacy rights litigation
Protection of trade secrets
Whistleblowing and other retaliation claims
Employee blogging, social media use by employees and by employers, related laws and regulations, social media in investigations and litigation
Family, medical, and military leave, recent developments under the FMLA and USERRA
Arbitration, the Federal Arbitration Act (FAA), employer-employee arbitration agreements, and disputes

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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.

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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.

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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).

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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.

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