Category Archives: Practice Areas

Treatise Update – Business Taxation Deskbook: Corporations, Partnerships, Subchapter S, and International

Business Taxation Deskbook is a guide to a wide range of domestic and international business tax issues under the federal income tax law as it exists subject to the Internal Revenue Code after the enactment of the Tax Cuts and Jobs Act of 2017 (TCAJA). The book provides a brief introduction to state law issues in business taxation. It also addresses the life cycle of the three principal business entities (that is, C corporations, partnerships, and S corporations), and inbound and outbound cross border transactions.

Highlights of Release #2 include:

New § 1:19 – provides a brief introduction to the taxation of cryptocurrencies.
New § 1:21 – discusses some of the Biden administration’s business-related tax proposals.
New § 1:22 – briefly introduces the OECD’s Pillars One and Two for avoiding abuse in the international tax system.
New § 5:4.1[D][3] – explains a federal district court decision holding that temporary regulations implementing section 245A were invalid because they did not meet the APAs notice and comment requirements.
New § 8:6 – addresses a potential change in the definition of control both for purposes of section 351 and the reorganization provisions.
New § 21:4 – introduces the OECD’s Pillars One and Two, which are designed, inter alia, to prevent a parent company from avoiding tax on income earned by its foreign subsidiaries.

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New Editions! SEC Compliance and Disclosure Series

PLI Press is proud to announce the publication of the new editions of the three books in the SEC Compliance and Disclosure Series.

The titles in the series are step-by-step guides delivering clear explanations, comprehensive information, and essential practice tips.

Master the 8-K offers updated direction on filing the SEC’s Current Report on Form 8-K. Master the 10-K and 10-Q gives instructions and analysis to ensure accurate and timely filings. Master the Proxy Statement advises companies on year-end disclosures and preparing proxy materials. The series includes sample language, detailed appendices, key regulations, and related forms and checklists.

Some of the highlights from the recently published editions include:

The latest guidance alerting users to the potential upcoming new Form 8-K Item for “cybersecurity incidents” (see Master the 8-K Introduction and Item 1.05);
Discussion of the revisions to the redaction process relating to confidential information in exhibits that removed the old “competitive harm” requirement (see Master the 8-K §GP:8);
Instruction to users about potential Form 8-K disclosure revisions that could result from the Commission’s proposed amendments relative to SPACs and “de-SPAC” transactions (see Master the 8-K Item 2.01);
Explanation of the new requirement to soon submit (on EDGAR) the “glossy” annual report to shareholders required by Rule 14a-3(b) (see Master the 10-K and 10-Q §GP:5.2);
Notification on the addition of Item 9C to Form 10-K—“Disclosure Regarding Foreign Jurisdictions that Prevent Inspections” (see Master the 10-K and 10-Q §GP:2 and §3:9);
Communication about the adoption of rules allowing for electronic signatures on SEC filings (see Master the 10-K and 10-Q §GP3:3)
Announcement of changes to the rules regarding the furnishing of proxy voting advice (see Master the Proxy Statement General Principles and Appendix 1);
Information about the universal proxy rule, which is now effective for contested director elections taking place after August 31, 2022 (see Master the Proxy Statement §21:1);
The new exhibit requirement when a fee is required in connection with filing proxy materials (see Master the Proxy Statement §GP2:2).

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New Edition! Internal Revenue Service Practice and Procedure Deskbook (Eighth Edition)

PLI Press is proud to announce the publication of the new edition of the Internal Revenue Service Practice and Procedure Deskbook.

The eighth edition contains guidance for representing a client undergoing a civil or criminal tax examination. It presents an overall discussion of IRS procedures and practical and strategic considerations. The Deskbook is an indispensable resource for any individual or entity appearing before the IRS including lawyers, accountants, in-house tax directors, and tax counsel.

Some of the highlights from the new edition include:

Informal guidance to reject research credit claims as nonprocessible to the extent claims do not meet the “sufficiency standard” with respect to five different items of information (see section 8:1.2);
A recommendation that Congress should extend the lookback period when the filing deadline is postponed by the IRS due to a disaster declaration, to the period of the postponement plus three years, plus any extension of time for filing the return (see section 8:1.9[B]);
An explanation that many taxpayers preparing their 2021 returns are now grappling with the 80 percent limit under section 172(a) for the first time (see section 8:3); and
A discussion of whether a partnership may recover litigation costs paid by its partners (see section 18.7.1).

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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 covers the landowner’s and the tenant/lender’s differing views on the basis for a percentage rent formula (see section 1:4.5).
Chapter 4: Updated discussion reviews the Lever House in the context of unused development rights (see section 4:5.3).
Chapter 10: Updated discussion reviews setting the duration of term when there is a second or third use of a building (or the underlying land) (see section 10:7.1).
Chapter 13: Provides a new typical maintenance clause (see section 13:5).
New Appendix Y: A provision creating a replacement reserve for the replacement of furniture, fixtures, equipment, and operating systems during the last twenty years of the lease term, or upon the exercise of the last tenant option to extend the term, or a number of years to be specified after completion of construction of the project.
New Appendix Z: A form of completion guaranty that covers completion of shell and core construction, exclusive of tenant improvements, and including ground lease rental that arises under the lease due to delays in completion of construction.
Chapters 3, 5, 6, 8, 12, 16, 19, and 20 have also been updated with the latest developments.

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

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New Edition! Corporate Political Activities Deskbook (2022 Edition)

PLI Press is proud to announce the publication of the new edition of Corporate Political Activities Deskbook.

The Deskbook serves as a practical manual for attorneys who advise corporations about involvement in the political process. It provides a thorough grounding in the law of federal and state campaign finance, pay-to-play, lobbying, and gift compliance, along with examples of best practices that can help corporations successfully interact with United States federal, state, and local governments and officials.

The new edition reflects the most current state of the law and includes, for easy reference, updated charts on state and local pay-to-play rules, federal and state lobby laws, and state contribution laws.

Among the developments discussed in the 2022 Edition are:

Foreign National Prohibition – Update added about the 2021 SEC ruling regarding whether the ban on foreign national involvement in the financing of any U.S. election extends to include spending relative to ballot initiatives (see Section 1:2.2).
FARA Rulemaking – A new section calls attention to the DOJ’s December 2021 advanced notice of proposed rulemaking which solicited comments relevant to an anticipated comprehensive update on the implementing regulations under the Foreign Agents Registration Act (FARA) (see Section 7:5).
Jurisdictions with Pay-to-Play Rules –A revised table of jurisdictions with pay-to-play rules includes additional cities in Massachusetts, Ohio, Pennsylvania, and Texas (see Section 5:2, Table 5-1).

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Treatise Update – Sinclair on Federal Civil Practice (Fifth Edition)

Sinclair on Federal Civil Practice gives quick and authoritative answers for issues arising in federal civil litigation and serves as a guide to the principal rules and tactical considerations guiding lawsuits in the federal courts. This two-volume treatise explains the layout of the court system and the nature of its key personnel, jurisdiction and venue principles, and the sequence of litigation. It also provides insight into the rationale of the rules by citing the key interpretive cases and offering court-tested practice tips.

Highlights of the new release include:

Chapter 15: Significant expansion of discussion regarding jury instructions, including the respective roles of the judge and counsel; due process limits on jury discretion; the plain error standard; objections to instructions; timing of instructions, requests and actions on requests; jury instruction drafting principles; and review of preserved and unpreserved instruction errors.

Chapter 18: In-depth analysis of the harmless error rule, including of Supreme Court jurisprudence on the issue and the Court’s differentiation between three classes of errors that can have an adverse impact on a litigant’s substantial rights during trial: (1) non-constitutional errors; (2) “trial errors”; and (3) “structural defects.”

Chapter 19: Discussion of recent amendments to Rule 3 of the Federal Rules of Appellate Procedure addressing how an appeal of right is taken, and specifically affecting the content of the notice of appeal that is required, with important clarifications regarding the scope of the judgment or appealable order designated in the notice of appeal.

In addition, numerous recent law review articles are added to the Additional Resources section of many chapters, and the chronological circuit-by-circuit Compendium of Recent Cases (Vol. 1 & Vol. 2) is updated.

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Treatise Update – Corporate Legal Departments: Practicing Law in a Corporation

Corporate Legal Departments: Practicing Law in a Corporation provides invaluable guidance on a wide range of responsibilities and dilemmas in-house attorneys face. It advises on matters such as detecting and preventing internal legal problems, developing corporate business plans, pursuing new business opportunities, using cost-effective litigation strategies, and managing corporate crises. The treatise features a unique In-House Counsel’s Handbook covering some of the key areas of corporate law and compliance.

Highlights from this expanded and updated release include:

Technology management: A new section discusses the role technology plays in promoting remote communications, data privacy, and cyber security, especially in the COVID-19 era, and whether current technology fully supports legal entity management (see section 6:4).
Organization: A new section illustrates four types of reporting lines that are critical for promoting communication and transparency between the general counsel and the chief executive officer as well as the board of directors (see section 2:8).
Privileged communications: A memo from the Department of Justice in a recent case involving Google explains the need to properly educate in-house counsel and nonlawyer employees on the practice of copying counsel on requests for legal advice where no advice is requested in order to shield business advice in the cloak of legal advice offered by counsel (see revisions in sections 12:1 and 14:15.11).
In-House Counsel’s Handbook: This release includes extensive updates to Appendix A, which is designed to help in-house lawyers understand pertinent points in key areas of their practice.

The Index has also been updated for this release.

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Treatise Update – Fragomen on Immigration Fundamentals: A Guide to Law and Practice (Fifth Edition)

Fragomen on Immigration Fundamentals provides in-depth coverage of the rules, policies, and procedures related to key facets of immigration law in the United States. Throughout, the authors supplement analysis of recent cases, policies, and rules with practical guidance for both general practitioners and experienced immigration attorneys.

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

PERM Recruitment: §2:2.4[D][6] discusses how an August 2021 DOJ settlement agreement in a U.S. worker discrimination lawsuit against Facebook impacts government enforcement of the PERM program.
COVID-19: §2:10.3[A][3] and §3:4.1[C] reveal a new COVID-19 related requirement that green card applicants must satisfy in order to be deemed eligible for permanent residence. The new requirement is included in the routine medical examinations for both adjustment of status applicants in the United States and immigrant visa applicants applying at U.S. embassies and consulates abroad.
Work authorization for spouses: §5:6.3[B] and 10:3.4[N] cover a November 2021 announcement by the USCIS regarding the work authorization process for certain E, L-2, and H-4 spouses in response to a lawsuit that challenged the lengthy processing delays of EAD applications for dependents.
T nonimmigrants: In October 2021, USCIS issued comprehensive guidance in its Policy Manual regarding the adjudication of T nonimmigrant status applications for victims of severe forms of trafficking in persons (see §5:28.1[A]).
H-2B changing employers: §10:3.4[M] explains how a provision of a January 2022 DHS rule providing a cap increase for FY 2022 gives greater job flexibility to H-2B workers already in the United States.

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New Edition! ERISA: Department of Labor Investigations and Litigation

PLI Press is proud to announce the publication of the new edition of ERISA: Department of Labor Investigations and Litigation.

This book is both a reference guide to the Department of Labor’s regulations and informal guidance and a resource for the Department’s views on ERISA fiduciary responsibilities as expressed in litigation. As much of the Department’s enforcement and litigation has focused on pension plans, so does this book, along with an overview of health plan investigations, enforcement, and litigation. It also discusses the Department’s criminal enforcement program and the impact of the fiduciary rule on the financial services industry and related litigation.

Some of the changes to the 2022 edition include:

Missing participant investigations: A new section discusses EBSA’s Terminated Vested Participant or missing participant national project and the Fiduciary Investigations Program (see §6:1.6[B]).
Mental health parity enforcement and Nondiscriminatory wellness programs: New sections discuss a) federal statutes that require parity in employer-sponsored group health plans’ coverage for mental health and substance use disorders with coverage for medical conditions (see §7:4); and b) an area of EBSA’s enforcement activities focused on compliance with the Department’s regulations for nondiscriminatory wellness programs (see §7:7).
Dudenhoeffer “more harm than good” standard: An expanded discussion is provided of Retirement Plans Committee of IBM v. Jander, a case involving whether a prudent ESOP fiduciary could conclude that disclosing confidential information when disclosure is not required by the securities laws would do “more harm than good” (see §10:3.2[A]).
ESG and ETI investments: A new section discusses the evolution of the Department’s approach to whether non-pecuniary factors can be considered in making investment decisions for pension plans (see §15:1.3).

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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 and tactics which 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 illustrative 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:

Registration; grounds for rejection: Revisions include updates to the opposition proceeding involving the RAPUNZEL mark currently pending before the Trademark Trial & Appeal Board (see § 6:5.2).
Fraud: Revisions include discussion of Chutter, Inc. v. Great Management Group, LLC and Chutter, Inc. v. Great Concepts, LLC on the standard for fraud post-Bose (see § 7:2.5).
Limits to incontestability: Revisions include updated Eleventh Circuit case law on the relevance of incontestability to the infringement analysis (see § 7:3.4[C]).
Internet: Revisions include a new discussion of the Metaverse and cases involving non-fungible tokens (NFTs) (see § 11:1.3).
Rights of publicity and privacy: Section 14:2.1 takes note of NCAA name, image, and likeness rule changes per a recent Supreme Court case and NCAA policy changes.
TTAB proceedings: New Federal Circuit cases have been added to the discussion on standing in section 19:2.2[A].

The Table of Authorities and the Index have also been updated.

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