Category Archives: Treatise Update

Copyright Law Treatise Update!

Written by two nationally recognized lawyers who have litigated major copyright cases, Copyright Law: A Practitioner’s Guide (Second Edition), provides up-to-date analysis of court decisions and practical advice for the protection of copyrights. In this release, the authors update and expand your book with discussion of the following topics, among others:

Pre-1972 sound recordings: Under the Classics Protection and Access Act of 2018, sound recordings fixed before February 15, 1972 (previously outside the scope of federal copyright laws)are, as of October 11, 2018, afforded rights and remedies largely analogous to those enjoyed by sound recordings that have always been within the subject matter and protections of the Copyright Act.
Standing: According to the Ninth Circuit, a suit brought in the name of an animal may state a case or controversy for Article III purposes, but does not expressly authorize animals to file copyright infringement suits” (Naruto v. Slater).
First sale doctrine—electronic transmissions: in Capital Records,LLC v. ReDigi, Inc., the Second Circuit concluded that ReDigi—a business built on allowing users to “resell” uploaded digital copies to other users—infringed the plaintiffs’ reproduction right, rejecting application of the first sale doctrine as a defense. The court held that the ReDigi technology allowed for a reproduction of the digital file in a new material object “for a period of more than a transitory duration,” both in ReDigi’s server and in the new purchaser’s device. That results in the creation of a new phonorecord, which is a reproduction.
Fair use—parody: According to a New York federal district court, a one-woman play written in the style of Dr. Seuss and featuring a forty-five-year-old version of Cindy-Lou Who parodied How the Grinch Stole Christmas! And qualified as a fair use (Lombardo v. Dr. Seuss Enterprises, L.P.).

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

Updated Treatise! Friedman on Leases (Sixth Edition)

Friedman on Leases is widely regarded as the leading authority on commercial real estate leasing, recognized for its extensive and balanced coverage of tenant and landlord concerns. This fifth release of Friedman on Leases, Sixth Edition continues to deliver not only the foundational knowledge required by novice practitioners, but also analysis of and insight into the most current and relevant developments facing seasoned practitioners in the commercial real estate field.

The author, Andrew R. Berman, is Senior Vice-President and Associate General Counsel with Savills Studley in New York. He is a former real estate partner at Orrick Herrington, Akerman, and Sidley Austin, and is a law professor at New York Law School, where he founded the Center for Real Estate Studies and the Institute for In-House Counsel. Mr. Berman’s expertise in both practice and academia enable him to provide the broad perspective and insight that real estate professionals need in this rigorous and dynamic field.

Highlights of Release #5 include the following:

Fiduciary Capacity; Authority. Updated discussion reviews how Illinois, New York, and Pennsylvania approach a landlord-trustee’s power to lease in the absence of a special power. (See section 2:1.2.)
Taxes, Assessments. Updated discussion covers when a lease requires the tenant to pay the landlord additional rent based on future increases in real estate taxes. (See section 5:2.1.)
Amount of Percentage Rent. Updated with new examples that illustrate the different approaches to determine percentage rent, as well as a new sample percentage rent provision with percentages that vary and a cap. (See section 6:2.)
Holdover Tenant Versus Foreclosing Mortgagee. Updated to include cases that illustrate the uncertainty over whether an attornment provision affirms that privity of estate exists between the tenant and the purchaser, or whether it extends liability by way of privity of contract. (See section 8:3.)

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

Treatise Update: Mutual Funds and Exchange Traded Funds Regulation (Third Edition)

Mutual Funds and Exchange Traded Funds Regulation offers definitive and up-to-date legal and compliance information. This two-volume treatise is filled with practical advice on complex issues involving valuation, distribution through intermediaries, structuring a 12b-1 plan, conducting a compliance review, and guarding against conflicts of interest. Mutual Funds and Exchange Traded Funds Regulation is an essential compliance tool for securities attorneys, mutual fund practitioners, compliance personnel, and risk officers in fund complexes, and a valuable reference for business professionals and investors.

The latest update to Mutual Funds and Exchange Traded Funds Regulation, Third Edition expands the treatise to cover developments affecting mutual funds and exchange traded funds. Highlights of this release include:

Chapter 5, Shareholder Reports. New discussion covers the June 2018 changes to Form N-1A adopted by the SEC regarding the reporting and disclosure of liquidity information by mutual funds in fund shareholder reports (see section 5:2.2[D]); reviews the SEC’s June 2018 adoption of new Rule 30e-3 under the Investment Company Act, which gives mutual funds a “notice and access” option for delivering shareholder reports (see section 5:3.2[B]); and examines Form N-PORT, which is the new form in which funds (except for money market funds) are required to provide additional and more frequent reports of portfolio holdings, risk metrics, and other data monthly (see section 5:4).
Chapter 13A, Liquidity Risk Management Programs and Swing Pricing. New discussion covers the SEC’s statement in the Investment Company Liquidity Disclosure Release that “funds that believe they would have to maintain dual liquidity classification programs” may apply for exemptive relief from the liquidity classification requirements of Rule 22e-4 if they believe their existing liquidity risk management programs would “effectively accomplish the Commission’s stated goals.” (See section 13A:4.7.)
Chapter 16, Purchase and Sales of Mutual Fund Shares. Updated discussion reviews FASB Accounting Standards Codification 820 (ASC 820) (previously FAS 157), including its definition of and framework for measuring fair value (see section 16:3.2); covers the amendments to Rule 22c-1 to permit certain registered open-end investment companies (not money market funds or ETFs) employing so-called “swing pricing” (see section 16:3.3); and examines Rule 22e-4 under the Investment Company Act, which requires open-end investment companies, including ETFs (but not money market funds), to adopt a liquidity risk management program that satisfies certain minimum requirements (see section 16:4.1).

This treatise can be found on PLI PLUS. If you would like to order a print copy, please email libraryrelations@pli.edu.

New Treatise Edition: Variable Annuities and Other Insurance Investment Products

The growth of variable insurance products has been dramatic and reflects broader trends that have occurred in financial services over the past few decades. Variable products are a clear example of how insurance companies have expanded their product base to more directly link insurance and investment. In recent years, other insurance investment products, such as SEC-registered fixed annuities, have grown in importance. PLI helps you keep pace with these developments.

Edited by Clifford E. Kirsch, noted authority in the area of securities regulation and compliance, and with valuable contributions from more than two dozen other distinguished practitioners in the field, PLI Press’s new Third Edition of Variable Annuities and Other Insurance Investment Products (formerly Variable Annuities & Variable Life Insurance Regulation) provides attorneys, compliance personnel, and business professionals with the most current legal, regulatory, and procedural guidance regarding variable annuities and other insurance investment products.

The comprehensive coverage in Variable Annuities and Other Insurance Products is grouped broadly into two sections. Part I focuses on variable insurance products, which are subject to a complex regulatory framework that includes the federal securities laws, state insurance laws, ERISA, and tax. Part II covers other types of insurance investment products such as insurance-linked securities.

This essential treatise can be found on PLI PLUS. If you would like to order a print copy, please email libraryrelations@pli.edu.

Treatise Update! Mergers, Acquisitions and Tender Offers

Mergers, Acquisitions and Tender Offers: Law and Strategies is a five-volume guide to domestic and cross-border mergers, acquisitions, and tender offers, covering a range of aspects including corporate, securities federal income tax, antitrust, pre-merger notification, accounting, and valuation. The book focuses on private company and public company acquisitions negotiated and hostile transactions. The title takes a practical approach to these topics, and many of the chapters have appendices containing deal documents that illustrate the practical application of the particular topic.

Highlights of Release #16 include:

New section 1:7.38, A Deal Lawyer’s “Second (2018) Take” on the Impact on M&A of the Trump Administration’s Potential Changes to Laws and Regulations, explains how on balance these changes may have a positive impact on M&A. However, the 100% bonus depreciation and limit on the deductibility of interest go in opposite directions, with 100% depreciation being an incentive for taxable asset acquisitions, but with the limit on the deductibility of interest being a disincentive for financing an acquisition with debt.
New section 3:3.2, Due Diligence: Cryptocurrencies, exploring the use of cryptocurrencies in any merger or acquisition. The parties will want to know if the counterparty has used or has any exposure to cryptocurrencies, and this section provides an introduction to these products.
New section 9:1.2, Introduction to the Domestic Provisions of the 2017 Tax Cuts and Jobs Act (TCAJA), which examines sections of the TCAJA impacting domestic M&A transactions, including the section 199A deduction for certain active income of pass-through entities; the individual rate structure for dividends and capital; the combined individual and corporate rates; the benefit to C corporation shareholders from the deferral of the shareholder tax and the anti-deferral provisions; and the limitation on the deduction for business interest.
New section 12:14.14, The “Passing on of Efficiencies” Requirement Through the lens of Hershey—Pinnacle and UPMC—Pinnacle, which discusses how, in advancing any efficiencies defense, the merging parties must be cognizant of a passing-on requirement (which, in essence, requires that the benefit from a cognizable efficiency be passed on (at least to an extent) to consumers). The purpose of this section is to analyze the wisdom of this passing-on requirement by considering under standard microeconomic principles what is likely to happen to price and output in the several markets.
New summary updates to Volume 3, discussing some of the changes that will be made in the next update to chapters 14 through 28, reflecting developments after July 31, 2018.

This essential treatise is available on PLI PLUS, our online research database. If you’d like to purchase a print copy, please email libraryrelations@pli.edu or call 877.900.5291.

Treatise Update! Investment Adviser Regulation

Investment Adviser Regulation: A Step-by-Step Guide to Compliance and the Law (Third Edition) guides practitioners through the maze of statutory, SEC, and state standards impacting investment advisers, as well as provides advice on the practical aspects of building a practice. This book clarifies key status issues that determine registration and disclosure duties as well as liability exposure.

The most recent update to this treatise expands its coverage of the rules and regulations affecting investment advisers. Highlights of this release include:

Chapter 8A, Efforts to Impose a Uniform Standard of Care on Broker-Dealers and Advisers. Updated to include the March 2018 action by the Fifth Circuit Court of Appeals to vacate the Department of Labor fiduciary rule amendments (see sections 8A:7.1 and 8A:8.1).
Chapter 11, Custody and Protection of Customer Accounts. Updated with a new discussion of whether client relationships for which an adviser is providing exclusively non-investment advisory services are within the scope of the Custody Rule (see new section 11:4:2[A][2]).
Chapter 46, Hedge Funds. Extensively revised chapter, including updated coverage of raising capital (see section 46:4); avoiding investment company status (see section 46:5); hedge fund managers (see section 46:6); disclosure of market participation (see section 46:13); and systemic risk regulation (see section 46:15).
Chapter 49C, Offering Cross-Border Advisory and Broker-Dealer Services to Non-U.S. Clients. Extensively updated chapter, including new discussion of key considerations in offerings to European clients under MiFID (see section 49C:4.3).

This treatise is available on PLI PLUS, our online research database. If you’d like to purchase a print copy, please email libraryrelations@pli.edu or call 877.900.5291.

Commercial Ground Leases: Now in its 30th Year!

Since the publication of its first edition in 1988, Commercial Ground Leases has been helping real estate professionals draft, negotiate, and finalize equitable, error-free commercial ground lease documents that address the needs of both landlord and tenant, providing clear explanations of complex issues in a framework that makes each individual subject easy to find. This one-stop volume also includes several valuable appendices that offer time-saving sample agreement language.

Commercial Ground Leases covers all the critical areas that participants in a commercial real estate development project need to know about in order to resolve any ground lease issues that may arise.

Recent updates to the third edition include:

–Chapter 4, Tenant Financing: General Updated section 4:5.3 reviews the risks posed by leasehold mortgages to the landowner.

–Chapter 6, Leasehold Financing A new section, 6:7.1[G], reviews the inclusion in the ground lease and in leasehold mortgage documents of a waiver by the ground lease tenant/borrower of any rights to a claim for damages against either the landowner or any leasehold mortgagee arising from any new lease into which they may enter.

–Chapter 7, Bankruptcy Updated section 7:3.2[C] reviews stub rent and whether the past due rent for the entire month is treated as unpaid pre-petition rent or if the portion of the rent attributable to the period after the filing date to the next rent due date is includible as a priority administrative expense.

This title is available on PLI PLUS, our research database. If you’d like to order a print copy, please email libraryrelations@pli.edu or call 877.900.5291.

Treatise Update! Financial Product Fundamentals: Law, Business, Compliance

PLI recently updated Financial Product Fundamentals: Law, Business, Compliance (Second Edition).

To provide attorneys, compliance personnel, and business professionals with legal, regulatory, and procedural guidance regarding the various financial products, Clifford E. Kirsch has edited Financial
Product Fundamentals, which compiles his expertise as a noted practitioner in the areas of securities regulation and compliance, together with valuable contributions from other distinguished authorities in these practice areas.

Highlights of the latest version include:

Chapter 2: Limited Offerings and Private Placements. Updated to reflect recent amendments to Rule 504 under Regulation D that increase the aggregate amount of securities that may be offered and sold in any twelve-month period, and disqualify certain bad actors from relying on Rule 504.
Chapter 12, International Investment Funds. Commodity Futures Trading Commission (CFTC) registration analysis for commodity pool operators and commodity trading advisors (CTAs), as
well as the exemptions from registration as a CTA pursuant to Rules 4.14(a)(4), 4.14(a)(5), and 4.14(a)(8).
Chapter 17, Exchange-Traded Funds. New discussions covering ETF distribution and associated fees, Authorized Participants and Authorized Participant Agreements, and marketing and advertising considerations for ETFs. Discussion updated to include recent regulatory developments regarding listing standards, reporting requirements and risk disclosures, and the Liquidity Rule’s application to In-Kind ETFs.
Chapter 19, A Primer on Derivative Contracts and Their
Regulation. Updated discussion follows the actions of the CFTC and SEC in addressing the many Dodd-Frank issues under their respective jurisdictions to regulate the swaps marketplace.
Chapter 24, Exchange-Traded Notes and Similar Structured
Notes. New discussion covers issues with respect to other types of structured notes that are not listed on securities exchanges.
New Chapter 27, Interval Funds. New discussion places interval funds in their regulatory framework, and covers issues associated with their operation and distribution, as well as the investment strategies utilized by these funds.

This essential title is available on PLI PLUS, our online research database. If you’d like to order a print copy, please email libraryrelations@pli.edu or call 877.900.5291.

Treatise Update! Langer on Practical International Tax Planning

PLI recently published an update to Langer on Practical International Tax Planning.

This treatise provides current knowledge and expert advice you need to help clients capitalize on ripe tax havens and financial centers.

The latest update includes several newly added sections covering the following topics:

The 2017 Tax Act. This new section outlines numerous changes made by the 2017 Tax Cuts and Jobs Act, including changes to the capital gains rate, deduction for state and local property and income taxes, dividends-received deduction, net operating losses, and like-kind exchanges.
Unemployment Compensation Paid After Leaving the United States.In what it said was a case of first impression for it, the Tax Court addressed whether a nonresident alien (Canadian) who had worked in the United States was exempt under treaty from taxation on unemployment compensation she received after having gone back to Canada.
Expatriating Corporations—Excise Tax. Updates provide the latest on how the 2017 Tax act affect the excise tax, which can apply to certain “disqualified” individuals if a corporation expatriates and gain on any stock in the expatriated corporation is recognized by any shareholder with respect to the expatriation transaction.
Charitable Distributions. This discussion covers newly modified procedures for how foundations may make a “good faith determination” that a foreign grantee is a “qualifying public charity.”
Payments to Related “Captive Insurance Companies”. Coverage of a 2017 Tax Court case examines the Service’s denial of a taxpayers’ claimed deductions under section 162 for amounts paid by their pass-through entities to a related captive insurance company.
Deemed Repatriation. This new section discusses how, under the 2017 Tax Act, U.S. shareholders owning at least 10% of a foreign subsidiary generally must include in income, for the subsidiary’s last tax year beginning before 2018, the shareholder’s pro rata share of the accumulated post-1986 historical E&P of the foreign subsidiary as of the “measurement date,” to the extent such E&P has not been previously subject to U.S. tax.

The updated treatise is available on PLI PLUS, our research database. If you’d like to order a print copy, please email libraryrelations@pli.edu or call 877.900.5291.

Deskbook on Internal Investigations, Corporate Compliance, and White Collar Issues

PLI recently updated Deskbook on Internal Investigations, Corporate Compliance, and White Collar Issues.

This treatise provides practical guidance on how to carry out internal investigations to identify and remediate legal problems, protect the rights of employees when they’re subject to investigation or prosecution, and cooperate with government investigators in ways that help reduce legal and financial damage if wrongdoing is proved.

The latest update includes coverage of the following topics:

Major ongoing antitrust investigations: A new section has been added discussing the Packaged Seafood Investigation into price-fixing of packaged seafood between the brands Chicken of the Sea and Bumble Bee, and its consequences including abandonment of a proposed merger, cooperation by the parent company of Chicken of the Sea in the investigation, agreement by Bumble Bee Foods to plead guilty to a criminal charge, and guilty pleas to charges of conspiracy by several corporate executives.
The most recent civil and criminal FCPA enforcement actions against companies and individuals: An updated discussion of The Foreign Corrupt Practices Act and the International Conventions on Bribery explores the DOJ’s revised Corporate Enforcement Policy, making permanent many of the core elements of the Obama administration’s Pilot Program, which has guided the DOJ’s FCPA enforcement decisions over the past year and a half. New to the policy is a presumption in favor of non-prosecution when companies self-report, cooperate, and remediate.
Deferred Prosecution Agreements (DPAs): the updates reflect the most recent (DPAs), while noting the decrease in number of such DPAs over the last few years.

The updated treatise is available on PLI PLUS, our research database. If you’d like to order a print copy, please email libraryrelations@pli.edu or call 877.900.5291.