Category Archives: Treatise Update

Treatise Update – Variable Annuities and Other Insurance Investment Products (Third Edition)

Variable Annuities and Other Insurance Investment Products offers accessible guidance to the federal and state regulation of variable annuities and insurance investment products. Readers will learn the professional duties and compliance responsibilities expected of issuers of insurance investment products. The book includes instructive examples around product design, approvals, administration and distribution, marketing, and inspections. The book further features conversations addressing special investment products, state insurance licensing requirements and suitability rules, index-linked variable annuities, registered index-linked annuities (RILA), and life settlements.

Highlights of the new release include:

  • ERISA Issues: New discussion of Prohibited Transaction Exemption 2020-02 (“PTE 2020-02”) which allows investment advice fiduciaries to receive compensation that would otherwise be prohibited in connection with providing investment advice and engaging in certain principal transactions (see section 6:9).
  • Insurer Exchange Programs: Covers the SEC’s announcement of settled charges against an insurance-affiliated broker-dealer/principal underwriter for improper exchange offers related to the affiliated insurer’s variable annuities (see section 13:5).
  • Advertising: Reviews FINRA Rule 5123 (“Private Placements of Securities”), a separate FINRA Rule that sets forth filing requirements for private placements (see section 19:4.2[B][13]), and the performance inception date for variable annuity performance advertising (see section 19:5.1[A][1]).
  • Senior Investors: Discusses actions by federal and state securities and insurance regulators to enhance the supervisory obligations of financial institutions dealing with senior investors (see section 27:2.1).

In addition, the Table of Authorities and Index have been updated to incorporate the latest developments and regulatory changes.

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Treatise Update – Taxation of Intellectual Property: Law and Practice

Taxation of Intellectual Property covers the tax consequences of creating, buying, exploiting, and selling various intellectual property assets (including patents, trade secrets, copyrights, trademarks, and computer software), as well as the tax considerations affecting intellectual property litigation. It identifies the IP taxation fundamentals relevant to individuals, corporations, partnerships, and non-profits and includes in-depth coverage of the various deductions applicable to patent royalties, salaries of researchers, and infringement-related legal fees.

Some of the recent developments discussed in this new release include:

  • Alternative Minimum Tax (AMT) for Corporations: Coverage of the repeal of the AMT for corporations by the Tax Cuts and Jobs Act of 2017 (TCJA) and the subsequent updates to this by the Inflation Reduction Act of 2022 (see section 3:2.3).
  • Research or Experimental Expenditure Deductions: Discussion of the new 5-year capitalization and amortization rule imposed on research or experimental expenditures by the TCJA (see section 4:3).
  • Research Credit for Small Business and Start-Ups: Provides the increased amount of the credit that small businesses and start-ups can apply against their payroll tax liability pursuant to the Inflation Reduction Act of 2022 (see section 4:6).
  • Tax Treatment of NFTs: Answers the question of whether an NFT used in trade or business would qualify as a Section 1231 asset eligible for capital gains treatment (see section 6:3.5[A][1]).
  • Litigation Expenses: Extensive coverage of the Actavis Lab v. United States case which dealt with the issue of whether a generic drug manufacturer’s patent infringement litigation expenses were tax deductible  (see section 7:1.1[C]).
  • Charitable Contributions of Cryptocurrency: Explanation of the circumstances in which a qualified appraisal is required for charitable contributions of cryptocurrency (see section 9:4.4[A]).

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Treatise Update – Hillman on Documenting Secured Transactions: Effective Drafting and Litigation (Third Edition)

Hillman on Documenting Secured Transactions offers grounded guidance on best practices for documenting and litigating secured transactions prepared pursuant to Revised Article 9 of the Uniform Commercial Code (U.C.C.). It offers a working grasp of the legal, technical, and business aspects of Article 9 transactions and examines the effects of the 2022 Amendments on nearly every article of the U.C.C. To gain free access to Chapter 18, which addresses the 2022 Amendments in more detail, click here.

Among the many topics updated in this new release are the following:

  • Perfection: A table of the new perfection methods under the 2022 Amendments (see section 2:6.2).
  • Signed Security Agreements: A listing of the increased number of situations in which a signed security agreement is not necessary under the 2022 Amendments (see section 4:1.2).
  • After-Acquired Collateral: A summary of the ways in which the 2022 Amendments narrow the scope of the prohibitions against security interests in after-acquired consumer goods or commercial tort claims (see section 7:2).
  • Control Under the 2022 Amendments: A discussion of how the 2022 Amendments offer new ways to perfect security interests in digital assets (see section 18:4).
  • Unperfected Security Interests: An explanation of the changes the 2022 Amendments make to U.C.C. § 9-317(b) regarding buyers who receive delivery (see section 19:2.1).

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Treatise Update – Technology Transactions:  A Practical Guide to Drafting and Negotiating Commercial Agreements

Technology Transactions enables practitioners to draft, review, and negotiate technology transaction agreements. Readers will encounter a trove of sample forms and best practices for negotiating some of the most common and sophisticated types of technology transactions. The book specifically covers issues relevant to software license, technology escrow, non-disclosure, domain name transaction, and cloud computing agreements. It also discusses the relevant privacy and intellectual property regulations lawyers should consider when drafting transactional documents.

Highlights of the new release include:

  • Chapter 4: A new section discusses the increasing adoption of sovereign cloud solutions and industry-specific clouds (see section 4:2.2[G]).
  • Chapter 5: Updated content discusses ICANN’s proposal of the new WHOIS Disclosure System which would facilitate access to nonpublic registration data associated with generic top-level domains (gTLDs) (see section 5:2.1[A]).
  • Chapter 11: New content discusses the increased use of efforts provisions in commercial agreements, the variants of the clauses that have been introduced, and issues litigated (see section 11:4), including the enforceability of such clauses (see section 11:4.1), efforts hierarchies in determining whether the standard was met (see section 11:4.2), and defining efforts standards (see section 11:4.3).
  • Chapter 19: Updated discussion describes the nine new elements that an information security program must include (see section 19:4.2).
  • Chapter 20: New content previews California’s Age-Appropriate Design Code Act which will take effect in 2024 (see section 20:7).

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Treatise Update – Kane on Trademark Law: A Practitioner’s Guide (Seventh Edition)

Kane on Trademark Law is a comprehensive resource on trademark law that provides court-tested practical suggestions on how to quickly spot potential conflicts and save time on searches, overcome common descriptiveness rejections, update or amend registrations, and prepare witnesses for depositions. It includes detailed lists of cases, full-color illustrations of previously litigated marks, sample forms, and step-by-step checklists.  The treatise is updated regularly to provide in-depth analysis of the most recent developments in the field.

The new release provides expert analysis and practical insights regarding a wide range of trademark issues. Topics of interest include:

  • Trade dress: A color illustration from the Tenth Circuit’s Bimbo Bakeries case has been added to Appendix B. The case is also cited in section 3:2.2[F].
  • Clearance: Revisions discuss the importance of ensuring that the appropriate rights have been secured to use the planned typeface for the brand (see section 4:3.4).
  • Priority: Revisions cover requirements to estab­lish “use analogous to trademark use” (see section 5:1.1).
  • Internet: Revisions cover the Metabirken NFT jury verdict and issues surrounding artificial intelligence tools, such as ChatGPT and Dall-E (see section 11:1.3).
  • Defenses: Revisions include updates to the General Cigar case (see section 12:2.2[D][1]) and Bluetooth case (see section 12:1.4).

The Table of Authorities has also been updated.

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Treatise Update – Advertising and Commercial Speech: A First Amendment Guide (Second Edition)

Advertising and Commercial Speech: A First Amendment Guide offers a practical examination of how the U.S. Supreme Court’s commercial speech doctrine impacts advertising across nearly 50 industries and professions. The book explores legal standards for defamation, false commercial speech, and disparagement along with developments around advertising for alcohol, financial institutions, professional services, medication, real estate, tobacco, and more.

Among the many topics discussed in this new release are the following:

  • Compelled editorial transparency: New section 12:13 discusses laws passed in Florida and Texas targeting social media platforms’ efforts to combat user-generated disinformation posted on their websites.
  • On-site and off-site signs and billboards: Section 13:2.1[A][7] covers the Seventh Circuit’s ruling regarding whether to apply strict scrutiny or intermediate scrutiny to an ordinance limiting digital displays and off-premises signs.
  • Drugs & drug paraphernalia: Section 14:14 explores a case from the Washington Court of Appeals rejecting a challenge to the state’s advertising restrictions on marketing cannabis products.
  • Regulation of advertising content: Revisions to chapter 14 include:
  1. The ruling of a Florida judge regarding whether part of the state’s Stop W.O.K.E. Act, which forbids companies from undertaking mandatory employee DEI training programs designed to limit or avoid discrimination practices, is unconstitutional (see section 14:16 on fair employment); and
  2. The Eastern District of Arkansas’ final ruling in the Tofurky case involving marketing of plant-based foods (see section 14:20 on food).

In addition, this release includes an updated Table of Cases, Defendant-Plaintiff Table, and Index.

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Treatise Update – Commercial Ground Leases (Fourth Edition)

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 features adaptable, time-saving agreement language and contains numerous appendices, including 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.

Highlights of the new release include:

  • Chapter 1: Updated discussion reviews ground lease terms and situations that necessitate their review (see section 1:4.2).
  • Chapter 3: Updated discussion closely examines inflation indexing as provided in Appendix X (see section 3:4.3).
  • Chapter 8: New discussion of Freddie Mac’s Multifamily Seller/Servicer Guide, specifically chapter 30, which sets requirements of ground lease mortgages (see section 8:14).
  • Chapter 16: Updated discussion of exceptions to nonrecourse liability (see section 16:6).
  • Appendix X: Chart 1 attempts to show how several elements of common indexing formulae would have fared over the fifty-year period from 1972 through 2021 using actual CPI data from the U.S. Bureau of Labor Statistics. Chart 2 uses the same historical CPI data, but starts the hypothetical lease term ten years later, in 1982.
  • Chapter 2, Chapter 4, Chapter 5, and Chapter 10 have also been updated with the latest developments.

In addition, the Tables of Authorities and the Index have been updated.

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For more by this treatise’s author, Jerome D. Whalen, check out the article Ground Lease Reappraisals Reconsidered published in the April 2022 issue of the PLI Chronicle.

Treatise Update – Holtzschue on Real Estate Contracts and Closings:  A Step-by-Step Guide to Buying and Selling Real Estate (3rd Edition)

Holtzschue on Real Estate Contracts and Closings is an invaluable resource for attorneys and general practitioners who handle real estate deals as well as an important reference for brokers, title insurers, and inspectors.  It distills more than thirty years of transactional experience into one plain-English treatise that clearly explains governing law and customary industry practices.  The book provides useful legal, technical, and strategic guidance and checklists for sellers’ and purchasers’ attorneys preparing them to execute dispute-free residential deals quickly and easily.

This new release offers the latest information crucial to your practice.  Highlights include:

In addition, the Table of Authorities and Index have been updated to reflect the latest revisions.

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Treatise Update –Sack on Defamation: Libel, Slander, and Related Problems (Fifth Edition)

Sack on Defamation—widely cited by U.S. courts including the U.S. Supreme Court, academics, and attorneys—offers strategic guidance for both plaintiffs’ and defense attorneys and fully covers the basic elements of a defamation claim. The treatise pinpoints how to identify practical legal issues such as when “truth” is not a defense, insults and name-calling that cross the line into defamation, how “public disclosure of private facts” becomes actionable, why statements of “opinion” are not protected, and when defamatory communications are privileged. It also integrates coverage of Internet and social media issues.

Highlights of the new release include developments covering the following topics:

  • Statements held to be nonactionable: Discussion of a Delaware case in which the court considered the issue of whether a letter to an employer calling an employee’s outside actions “racist” is constitutionally protected (see section 4:3.5).
  • Standard of conduct: public plaintiffs: The list of “vortex” public figures has been expanded (see section 5:3.5).
  • Standard of conduct: private plaintiffs: Coverage of a case about whether the 2020 amendments to New York’s anti-SLAPP statute are retroactive (see section 6:4).
  • Absolute privilege and government agencies: Summary of an unusual case from Oregon concerning false statements entered into a patient’s medical record by physicians who worked for a public corporation health system (see section 8:2.4[A]).
  • Invited defamation: Spotlights a case from the Second Circuit in which former U.S. Senate candidate and Alabama Supreme Court Justice Roy Moore accused comedian Sacha Baron Cohen of defamation for falsely portraying Moore as a pedophile in a mock interview for Cohen’s television program (see section 8:2.8).

In addition, the Table of Cases, the Defendant-Plaintiff Table, and the Index have been updated.

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Treatise Update – Patent Litigation (Third Edition)

Patent Litigation (Third Edition) enhances every patent litigator’s ability to prevail at trial while helping to cut the costs and complexity of litigation. Written by leading patent litigators, the treatise provides guidance on various infringement actions and their respective burdens of proof.  It also offers pointers on conducting comprehensive pre-suit investigations; developing potent case themes; assembling strong litigation teams; developing smart litigation budgets; maximizing the persuasive impact of documents, exhibits, and witnesses; and making savvy use of computers, jury consultants, and litigation support vendors.

The new release covers many important developments, such as:

  • Corporate disclosures under Rule 7.1 and the hotly debated issue of whether recent court-imposed disclosure requirements are justified or permissible (see new section 3:7).
  • Two cases from district courts on the standard for assessing com­munications between the buyer and seller and licensor/licensee of patent rights made before the transactions closed (see section 5:4.2).
  • Case law from the federal circuit regarding an overly broad in­junctive relief in the design patent context (see section 10:5.1).
  • Case law involving Moderna’s COVID-19 vaccine and Moderna’s claim that it is shielded from an infringement lawsuit in district court because of its agreement to supply the vaccine to the federal government (see section 14:2.2).
  • The PTAB’s clarification on its guidance for discretionary denial of IPR due to the advanced state of a parallel proceeding under Fintiv and the implications for the global defense strategy of re­spondents in ITC proceedings (see sections 14:4.9 and 15:3).
  • Circulation judge pool review, the PTO’s new internal procedure designed to improve overall quality of PTAB final written deci­sions (see new section 15:8.3).

For additional recent developments in patent litigation, check out this recent PLI Chronicle article, Patent Antibody Case Law Continues to Mature.

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