Category Archives: Treatise Update

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.

Treatise Update! Social Media and the Law

We have recently updated our treatise Social Media and the Law, which helps you understand the legal environment and mitigate the risks of using social media platforms.

Social Media and the Law provides broad coverage of social media in a variety of legal contexts, including privacy, civil litigation, employment, criminal activity and prosecution, intellectual property, brand protection, defamation, advertising, and regulated industries. This release highlights recent new legislation, cases, and usage trends, as well as industry responses, by companies such as Facebook, Twitter, YouTube, and Google, to abuses of their services.

Several new sections have been added in this release, enhancing the comprehensiveness of the book:
Section 8:5, Consumer Review Fairness Act: This Act prohibits
non-disparagement clauses in consumer transactions, which some
companies had included to obligate customers to refrain from posting
negative reviews of the company, and to give the company the right to
impose a financial penalty for any violation of the clause.
Section 9:2.8, Revenge Porn: Thirty-eight states and the District of
Columbia have criminalized the practice of posting online revealing or
sexually explicit images or videos of a person, typically by a former
sexual partner, without the consent of the subject and in order to cause
the person distress or embarrassment.
Section 9:2.9, Performance Crimes: The posting of videos and live
streaming of criminal activities has escalated recently and become the
focus of great concern. The manner in which social media platforms
address such activities will be closely watched.
Section 9:2.10, Sex Trafficking: Human trafficking is prohibited
by both federal and state laws. The U.S. Senate Commerce Committee
has also recently approved a bill entitled Stop Enabling Sex Traffickers
Act of 2017 which would allow criminal and civil actions against websites
for “knowingly assisting, supporting or facilitating” sex trafficking
through the site.

In addition, throughout the book are updates on the many developments in this field that occurred in the last year or so, such as:
• Activity by the FTC against social media influencers for failing
to properly disclose associations with companies whose products
or services they endorse.
• FINRA’s new guidance on social networking websites and business
communications of regulated industries, allowing firms to
engage in native advertising that complies with FINRA Rule
2210, provided that unsolicited third-party comments posted on
a social network are not regarded by FINRA as communications
of the broker-dealer.
• Placement of social media advertisements by Russian-linked
firms with the aim to influence the 2016 presidential election,
and Facebook’s new approach to combat the effects of fake news.
• Recent class action employment lawsuits alleging violation of
Illinois’s biometric privacy law, largely based on the use of fingerprint-operated
time clocks.
• The FTC’s actions against TaxSlayer and Uber for security
breaches and inadequate customer privacy measures.
• Approval by the Uniform Law Commission of a model uniform
employee password protection statute, Employee and Student
Online Privacy Protection Act (ESOPPA), which has already
been introduced in three states.
• Recent amendments to Federal Rule of Evidence 902 that provide
additional guidance for parties seeking to authenticate social media
evidence.
• Impact of President Trump’s “tweetstorms”

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! The Circular 230 Deskbook: Related Penalties, Reportable Transactions, Working Forms

We have recently updated our Treatise, The Circular 230 Deskbook, which helps tax practitioners comply with complex Circular 230 amendments more easily — and avoid costly penalties and sanctions.

This new version includes the following:
• Revised section 1:2, Chevron Deference, examining SIH Partners
LLLP v. Commissioner, in which the court clarified the distinction
between a legislative rule and an interpretive rule for purposes of
the Administrative Procedure Act.
• New section 4:13.8[D][10], Supervisor’s Approval, explaining that
a section 6751 penalty can be assessed only if it is approved by
the immediate supervisor of the individual making such determination
or such higher-level official as the Secretary may designate.
• Updated Appendix L, IRS Form 706; Appendix M, IRS Schedule M-3
(Form 1120); and Appendix N, IRS Form 2848.

The Circular 230 Deskbook is an essential compliance tool for every tax professional who practices before the IRS.

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! Commercial Ground Leases

Including adaptable time-saving sample agreement language, Commercial Ground Leases is a definitive guide to drafting, negotiating, and finalizing equitable, error-free leasing documents that address the needs of both landlord and tenant. It covers the full range of relevant commercial ground leasing issues, including:

Appendices include forms of letter of intent, leasehold mortgagee protection clauses, intercreditor agreements, fee and leasehold deed of trust provisions, estoppel certificate and guaranty, and a complete ground lease with many alternative clauses.

New to this release is Chapter 2A, Reappraisal of Ground Rents, which provides an expanded discussion of ground rent reappraisals, with coverage of the various appraisal methods.

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.