Category Archives: Practice Areas

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.

New Edition! Financial Institutions Answer Book: Law, Governance, Compliance (2018 Edition)

PLI recently published the 2018 edition of Financial Institutions Answer Book, which provides a comprehensive overview of the complex federal requirements regulating financial institutions in the United States in an easily accessible Q&A format.

Every aspect of a financial institution life cycle is covered, from understanding the differences in regulation based on what type of charter is chosen, through ongoing capital and deposit activities requirements and major changes in corporate control, to the cessation of entity activity through merger, acquisition, or entity failure.

Financial Institutions Answer Book describes the requirements under each type of charter for the major areas of financial institution activity, such as:

Reflecting the increased federal concern with fraud, money laundering, and protecting the federal taxpayer from bank defaults, individual chapters are devoted to describing in detail the federal enforcement agencies and their powers, anti-money laundering and other fraud issues, the required examinations and audit process, and recent regulatory approaches to problem banks and failure.

Published in a handy softcover volume, Financial Institutions Answer Book is a source for quick, concise answers for lawyers and other legal professionals, as well as financial institution managers, officers, directors, and anyone else who would like a comprehensive understanding of the legal framework regulating banks and other financial institutions.

This new answer book 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.

New Edition! Pharmaceutical Compliance and Enforcement Answer Book (2018 Edition)

 

PLI recently published the 2018 edition of Pharmaceutical Compliance and Enforcement Answer Book, which provides a comprehensive overview of the complex regulatory issues faced by the different participants in the pharmaceutical industry.

This resource gives clear, expert answers to questions on topics such as:

Filled with practical suggestions, Pharmaceutical Compliance and Enforcement Answer Book provides attorneys and compliance officers with a roadmap to effective compliance with FDA pharmaceutical regulations.

This new answer book 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! Cybersecurity: A Practical Guide to the Law of Cyber Risk

PLI recently updated Cybersecurity: A Practical Guide to the Law of Cyber Risk.

Among the many developments in this fast-moving field that are reflected in this treatise release are:

  • General Data Protection Regulation: The EU’s new General Data Protection Regulation (GDPR), effective May 2018, applies to most companies that collect personal data from individuals in the EU. The GDPR sets forth requirements for maintaining substantive security safeguards and notifying the supervisory authority and impacted individuals of breaches, and provides for significant financial penalties for noncompliance.
  • OCIE Risk Alert pertaining to broker-dealers: In an August 2017 Risk Alert, the SEC Office of Compliance Inspections and Examinations summarized observations from its second cybersecurity survey of broker-dealers and investment advisers, and noted a number of areas
    where compliance and oversight merited attention, signaling the issues on which it intends to focus in its yearly examinations.
  • Regulation of cybersecurity in the financial services industry: The discussion in chapter 5, Cybersecurity in Regulated Sections, is expanded to cover additional governmental agencies and industry associations that regulate financial services.
  • Requirements for defense contractors: In September 2017, the Director of the Defense Pricing/Defense Procurement and Acquisition. Policy issued guidance that recognizes that NIST Special Publication 800-171 avoids mandating specific solutions and provides latitude to
    contractors for how they choose to implement security controls and assess their own compliance with cybersecurity requirements. The guidance is notable because it allows small businesses with limited IT or cybersecurity expertise to meet the requirements of the special publication.
  • Cybersecurity of Federal Networks and Critical Infrastructure: President Trump’s Executive Order 13800 directs a broad examination of cybersecurity vulnerabilities at federal agencies; it also reaffirms the Obama administration’s approach to cybersecurity protections for critical infrastructure, seeking to promote the growth and sustainment of the nation’s cybersecurity workforce in the public and private sectors.

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! 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.

New Title! Legal Guide to the Business of Marijuana

PLI recently published a new title, Legal Guide to the Business of Marijuana.

This title is a new and unique resource for lawyers who represent clients in what has been called the fastest growing industry in the United States. The majority of states have enacted laws legalizing medical marijuana — with nine states to date allowing for recreational use — but marijuana remains illegal under the Federal Controlled Substances Act, giving rise to constitutional challenges to these state laws under the doctrine of preemption. As a result, marijuana enterprises must operate in a legal and regulatory environment of uncertainty, and lawyers representing these enterprises must tread carefully when advising clients.

Written by James T. O’Reilly, a lawyer and public health specialist, Legal Guide to the Business of Marijuana offers critical guidance to help lawyers effectively represent their clients while steering clear of seen and as yet unseen perils implicit in the continued federal-state conflict. The guide provides discussion and analysis of:

• the complex and varying state regulation of medical and non-medical marijuana, including a survey of state cannabis laws, with summaries and citations

• federal law, enforcement, and preemption

• the various aspects of establishing and managing a marijuana enterprise, including the growing, licensing, labeling, transporting, and distribution of marijuana and related products

• the implications of preemption on employment, taxes, and banking

For lawyers new to representing marijuana clients, the author provides an understanding of the definitions of marijuana and other cannabis products, as well as a review of the policy and political issues that have led to the controversy and uncertainty of the current environment.

This essential new 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.

New Edition! Transfer Pricing Answer Book (2018 Edition)

PLI recently published the 2018 edition of Transfer Pricing Answer Book.

The phenomena of increasingly global business enterprises with valuable intangible property expose companies to transfer pricing enforcement by different countries around the world. Many of these countries are increasingly aggressive in enforcing their local transfer pricing rules, as they attempt to protect their tax revenue base. To avoid double taxation of the same income in this environment, companies often are required to deal with the highly specialized, bilateral treaty-based competent authority process developed to prevent double taxation at a time when trade mainly involved only two established countries. Even more challenging today, companies and tax authorities increasingly are faced with the potential for multiple taxation of the same income, as supply chains cross many borders and as the tax authorities of emerging countries become players in the global taxation process, and the resulting stresses, strains, and limitations of the bilateral treaty-based competent authority process have become more apparent.

In light of the high-dollar risks presented by the increased enforcement efforts of tax authorities worldwide, the complexity of the ever-changing, inherently uncertain transfer pricing standards, and the continually evolving business models of businesses adapting to the constantly changing global economy, companies need practical guidance to permit them to develop and defend their transfer pricing strategies.

Transfer Pricing Answer Book gives companies such guidance by discussing all aspects of transfer pricing, from initially planning a transfer pricing strategy, to alternative ways to defend the strategy from attack by two or more tax authorities, to resolving a case before competent authorities, to bringing a transfer pricing case to court. It also provides an overview of the IRS’s approach to transfer pricing enforcement. The book’s non-technical discussion is presented in a question-and-answer format that will appeal to readers regardless of their prior level of experience or familiarity with taxes in general and transfer pricing in particular.

Transfer Pricing Answer Book is an invaluable resource for company executives and their advisors who are seeking to better understand this important area of tax law–one that has become  an important economic facet of so many businesses.

The new edition 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.