Category Archives: Treatise Update

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.

Treatise Update! Friedman on Leases

PLI recently updated Friedman on Leases (Sixth Edition). This acclaimed treatise 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.

This definitive work 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.

Highlights of this Release #3 include the following:

    • Disclaimer of Waiver by Landlord: Updated discussion examines
      whether a nonwaiver provision may be waived.
    • Security Deposit Clause: New samples of a lease provision that requires
      tenant to deposit cash as security; a lease provision that requires
      tenant to deposit a letter of credit as security; a lease provision that permits
      tenant to deposit either cash or a letter of credit as security; a lease
      provision that permits the security deposit to be reduced if certain conditions
      are satisfied; and a form of a letter of credit to be attached as an
      exhibit to a commercial lease.
    • Option to Cancel Lease—Sample Provisions: New samples of negotiated
      provisions granting tenant the one-time right to cancel.
    • Stipulations: Instead of a stipulation that permits tenant to remove
      its installations, an alternative approach is for the parties to define in the
      lease what constitutes “Tenant’s Property,” and that the tenant has the
      right (and/or the obligation) to remove its property. A new sample provision
      of this type is provided.

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! How to Write a Patent Application

PLI recently updated the acclaimed How to Write a Patent Application.

Stocked with drafting checklists and sample drafting language, documents, and drawings, the third edition of How to Write a Patent Application walks you step by step through the entire process of preparing patent applications.

In this release, the author expands and updates your treatise with
practical information on the following topics and more:

  • Micro entity status: One commentator has suggested that micro entity status should never be claimed, because the costs will outweigh the benefits.
  • Expanded Collaborative Search Pilot Program: This release describes the basic requirements to quality for the program, which results in an expedited first office action, but no further expedited examination.
  • Patent agents: The Texas Supreme Court has recognized a patent agent–client privilege, although not all communications are protected (In re Silver).
  • Patentable subject matter—preemption: In Return Mail, Inc. v. U.S. Postal Service, the Federal Circuit noted that the issue of whether a claim completely preempts others from entering the field plays a part in analysis of whether the invention is patentable subject matter. The absence of preemption supports a determination that a claim is patent eligible, but the absence of preemption does not necessarily save a claim.
  • Indefiniteness—claims that are in two statutory classes: Claims that cover two statutory classes, such as a claim that covers both an apparatus and a method of using that apparatus, can be indefinite. However, using functional language to define the properties of an apparatus does not render the claims indefinite. According to the Federal Circuit, a claim that requires specific actions performed by the user rather than capabilities of the system is indefinite under 35 U.S.C. § 112 (MasterMine Software, Inc. v. Microsoft Corp.).
  • Writing the specification—background section: The author contraststwo separate philosophies as to what should be included in the background section: One is to include substantially nothing; the other is to make a sales pitch.
  • Design patent applications—cross-references: If appropriate, a design patent application can include a cross-reference section to related applications. The cross-reference section should also include any priority claim such as to previously filed design applications or even utility applications. However, a claim to a nonprovisional utility application cannot include a claim to priority of a provisional application from which the intermediate application claims priority.
  • Software patent applications—writing a specification defining subject matter eligibility: To avoid a subject matter rejection under Alice Corp Pty. Ltd. v. CLS Bank International, it is desirable that the claims contain limitations that satisfy subject matter eligibility requirements, with support for the claims in the specification. Accordingly, the author offers six drafting suggestions for the specification.
  • Biotechnology patent applications—presentation of nucleotide and amino acid sequences: Patent Office rules standardize the disclosure of nucleotide and amino acid sequences in biotechnology patent applications. The rules facilitate the examination and printing of detailed sequence information and do not alter the substantive requirements of the patent statute. Among other things, these rules require that all patent applications containing an unbranched sequence of four or more amino acids, or an unbranched sequence of ten or more nucleotides, contain a sequence listing. The sequence listing must be submitted in paper or compact disc form, as well as submitted in a computer-readable form (CRF) using standardized symbols and format. The rules are part of an international effort to facilitate the electronic transfer of sequence information for universal use.
  • Foreign patent applications—broadening claims: Practitioners should be aware that, in Europe, once an application has been filed, it is very difficult to broaden a claim. Thus a claim directed to elements A, B, and C may not be broadened to include just A and B, even if the specification specifically reports such an option. Accordingly, it is desirable in a first filing in many foreign countries, including in the European Patent Office, to include very broad claims.

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.

Treatise Update! Sack on Defamation

Written by a U.S. Court of Appeals judge and cited by courts throughout the United States–including by the U.S. Supreme Court–Sack on Defamation delivers definitive legal, strategic, and tactical insight into libel, slander, and other defamation-related causes of action for both plaintiffs’ and defense attorneys.

Highlights of the new release include:

Context of allegedly defamatory statement: In McKee v. Cosby, the
plaintiff accused the defendant of defaming her in a letter by using her
published statements out of context. But the First Circuit, applying
Massachusetts law, concluded to the contrary, noting that the quotations
were “immediately followed by a hyperlink to the source article, allowing
readers to put [the plaintiff’s quoted] statements into proper context.”
Defamation of groups and group members: In Elias v. Rolling Stone
LLC, the Second Circuit, applying New York law, held that it was error
to dismiss a defamation cause of action brought by a group of fifty-three
members of a college fraternity, based on a false published statement
by the defendant that some nine of the fraternity’s then members had
committed or participated in a rape at their fraternity house.
Hepps doctrine—matters of public concern: The Texas Supreme Court,
in Brady v. Klentzman, has “recognized that even if the general subject
matter of a publication may be a matter of legitimate public concern,
some of the details may not be. But if a ‘logical nexus’ exists between
these details ‘and the general subject matter’ of the article, then they are
reasonably included as a matter of public concern.”
Opinion—emojis and emoticons: Digital media may well give rise to
a new context in which to decide whether a statement is fact or opinion.
One can guess that emojis and emoticons will, by their nature, ordinarily
be treated as nonactionable opinion or commentary. See § 4:3.1[A], at
note 121.1.
• Public officials: Persons held to be public officials include the director of
budget and finance for a public school system; a former town clerk who,
as such, “had the primary responsibility for organizing and issuing the
payroll for the town”; and the deputy manager of a U.S. shuttle projects
office partially responsible for overseeing the development and operation
of the propulsion systems for the ill-fated Challenger shuttle.
“Actual malice”—fictionalization: In Lovingood v. Discovery
Communications, Inc., a federal district court in Alabama found no
“actual malice” where a BBC docudrama broadcast under license by the
defendant contained an invented scene defamatory of the public-figure
plaintiff; “there is no evidence from which jurors could reasonably infer
that the . . . defendants had reason to doubt the accuracy of the scenes
in the . . . film or that the defendants’ failure to do more to investigate
the accuracy of the two scenes at issue evidences ‘an intent to avoid the
truth.’”
Absolute privilege—statements to federal authorities: Statements to
federal officials may also be entitled to absolute privilege. For example,
in Mangold v. Analytic Services, Inc., a divided panel of the Fourth Circuit
held that statements made by a government contractor in the course of
the investigation of an Air Force colonel’s dealings with the contractor
were absolutely privileged. The court saw the privilege as analogous
to immunity for testimony in court, before a grand jury, and to public
prosecutors.
Qualified privilege—charges of child sexual abuse: In Connecticut, by
statute, charges of child sexual abuse made to the Department of Children
and Families are entitled to qualified immunity.
Damages: Although the courts continue to monitor and sometimes limit
damage awards, there are still large libel verdicts that survive appellate
review, as a number of multi-million-dollar cases demonstrate.
Jurisdiction—New York long-arm statute: New York’s long-arm
statute includes exceptions that limit its application in defamation cases;
this favorable treatment of defendants in defamation cases has been held
by the Second Circuit, in a thorough opinion by Judge Walker, to be
constitutional, abridging neither the plaintiff’s First Amendment right to
petition nor his or her Fourteenth Amendment rights to equal protection
(Friedman v. Bloomberg L.P.).
Texas Defamation Mitigation Act: In addition to its anti-SLAPP statute,
Texas has enacted the Defamation Mitigation Act, which requires a
prospective plaintiff to make a request of the prospective defendant for a
correction, clarification, or retraction of offending allegedly defamatory
material before bringing a defamation action, unless the defendant has
made such a correction, clarification, or retraction without such a request.
Anti-SLAPP laws—Massachusetts, Maine: Recent cases interpret and
apply the anti-SLAPP statutes of Massachusetts (Blanchard v. Steward
Carney Hospital, Inc.) and Maine (Gaudette v. Mainely Media, LLC),
which are both aimed at protecting the constitutional right to petition,
rather than freedom of speech or of the press generally.

The updated treatise 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! Public Company Deskbook

PLI recently updated Public Company Deskbook: Complying with Federal Governance & Disclosure Requirements, which 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.

Highlights of Release #7 include:
New Chapter 5G1 addressing the latest SEC guidance on
cybersecurity disclosure and related issues, including in respect of
disclosure controls and procedures and insider trading risks.
• Updates to Chapter 2K to reflect the proposed Nasdaq rule change
relating to shareholder approval of issuances over 20%.
• Updates to Chapter 3A to reflect adoption of the new audit standard
requiring discussion of “critical audit matters” in the auditor’s
report.
• Updates to Chapter 4B to reflect the 2017 tax reform legislation
amendments to section 162(m) of the Internal Revenue Code.
• Updates to Chapter 4F to address the latest SEC guidance on pay
ratio calculation and disclosure.
• Updates to Chapter 5F to reflect the revised NYSE requirements
relating to timely disclosure at the end of the trading day.
• Updates to Chapter 6B to reflect the U.S. Supreme Court’s recent
decision limiting Dodd-Frank Act whistleblower protections to
persons who actually communicated their tips to the SEC.

The updated treatise 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.

Trial Handbook (Spring 2018) Now Available!

Trial Handbook is the one-stop resource you can trust for the planning, trial, and post-trial stages of litigation. Designed for quick reference in the courtroom, Trial Handbook is keyed to the Federal Rules of Evidence and focuses on the presentation of proof and the evidentiary problems faced by counsel.

Packed with practical checklists, charts, outlines, and sample jury selection questions, Trial Handbook gives you the knowledge and tools to:

New to the Spring 2018 Edition are a discussion of the amendment limiting the “ancient documents” exception to the hearsay rule and a discussion of the amendments to Rule 902 that allow certain electronic evidence to be authenticated by a written pre-trial certification of a qualified person.

At the heart of Trial Handbook is its unique Evidence Guide, also included as a laminated fold-out, which clearly explains the meaning, purpose, operation, and history of every rule, including how each rule applies to other cases and how leading cases construe a particular rule.

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! The Corporate Tax Practice Series

We have recently updated our treatise The Corporate Tax Practice Series.

With contributions from more than 435 of the world’s leading tax practitioners, including former Internal Revenue Service and Department of Treasury officials, this 31-volume set is the definitive resource on corporate tax.

The 2017 edition of The Corporate Tax Practice Series contains 100 articles that have been updated to reflect the latest developments in topics ranging from LLC incentive compensation to modifying debt and its consequences. We’ve also added 31 new articles that have not
previously appeared in the series that tackle issues including:

A financial and income tax analysis of earnouts
S corporation acquisition techniques
Misclassification of employees and Section 530 relief
Significant modification of debt instruments

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.