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July 2011 Client Alerts

Updated Claim Procedure Requirements for Non-Grandfathered Health Plans

The Internal Revenue Service, Department of Health and Human Services and Department of Labor have revised the interim final regulations governing internal claims and appeals and external reviews for non-grandfathered group health plans under the 2010 health reform law.  The have also revised the forms for adverse benefit determinations and updated the list of state consumer assistance programs.  Many of the changes ease the burden of plan administration.  To learn more, please click here to read the Alert published by the Employee Benefits & Executive Compensation Client Service Group on July 1, 2011. 

IRS Issues Guidance on Health Plan Excise Tax Returns, Code Section 162(m)

On June 24, 2011, the IRS finalized rules on automatic extensions for Form 8928 Excise Tax Returns for employer-sponsored health plans and also released guidance on performance-based compensation plans of public companies.  For highlights of the rules, please click here to read the Alert published by the Employee Benefit & Executive Compensation Client Service Group on July 7, 2011.

FTC Suit Signals Increased Scrutiny of Advertising Endorsements

In May, the FTC brought suit against a company that sold a promissory note business system based upon the allegation that the company used consumer testimonials that could not be substantively substantiated, and that the company did not adequately disclose the typical performance that consumers were likely to achieve.  This marks the thirteenth case this year in which the Commission has alleged that a company has deceptively used testimonials and endorsements.  To read more, please click here for the Bulletin published by the Consumer Protection Group on July 5, 2011.

EPA Issues The Cross-State Air Pollution Rule To Reduce Power Plant Emissions In the Eastern United States

In July the U.S. Environmental Protection Agency (EPA) issued the Cross-State Air Pollution Rule (Cross-State Rule), requiring power plants in 27 states to reduce their emissions of nitrogen oxides and power plants in 23 of these states to also reduce their emissions of sulfur dioxide.    The purpose of the rulemaking is to ratchet down power plant emissions that contribute to elevated concentrations of ozone in downwind states.  For a summary of the relevant provisions of the Clean Air Act and the new Cross-State Rule, please click here to see the Bulletin published by the Environmental Client Service Group on July 22, 2011.

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May 2011 Client Alerts

Federal Judge in Missouri Dismisses Legal Challenge to Health Care Reform

The Judge in the U.S. District Court for the Eastern District of Missouri, Southeastern Division, entered an order dismissing a lawsuit filed by Lt. Gov. Peter Kinder that challenged the Patient Protection and Affordable Care Act.  Kinder et al v. Geithner et al. was filed in July 2010 by Kinder, joined in by six other Missouri residents, as a private citizen after the state’s attorney general declined to join other states in challenging the health care law.  To read more about the order in this case, please click here to see the Alert published by the Life Sciences and Health Care Client Service Group on May 3, 2011.

FTC Cracking Down on Affiliate Advertisers

In April the FTC filed 10 lawsuits against companies and individuals that run affiliate advertising websites.  These lawsuits come within two months of an earlier round of lawsuits targeting affiliate advertising programs.  The most recent targets are fake news websites that promote weight loss products.  To learn more, please click here to read the Alert published by the Retail Team on May 5, 2011.

Arbitration Clauses May Waive Class Proceedings

The U.S. Supreme Court recently ruled that the Federal Arbitration Act does not allow state law to invalidate class action waivers in arbitration agreements on the basis of unconscionability.  While AT&T Mobility v. Concepcion involved consumer claims, the language of the ruling will bolster enforceability of class action waivers in employment related arbitration agreements.  To read more about the ruling, click here for the Alert published by the Labor & Employment Client Service Group on May 18, 2011.

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March 2011 Client Alerts

Department of Labor Extends Non-Enforcement Period for Certain Internal Claims and Appeals Requirements Applicable to Non-Grandfathered Plans Under the Affordable Care Act

On March 18, 2011, the Department of Labor issued Technical Release 2011-01 extending, with some modifications, the enforcement grace period established under DOL Technical Release 2010-02 until plan years beginning on or after January 1, 2012.  To learn more the extension of the enforcement grace period, please click here to read the Employee Benefits and Executive Compensation Client Service Group’s Alert published March 21, 2011.

Reporting for Participants with Deferred Vested Benefits – IRS Replaces Schedule SSA

Plan administrators are required to report certain information regarding participants who separate from service with the right to a deferred vested retirement  benefit.  In Announcement 2011-21, the IRS designated Form 8955-SSA to be used to satisfy this reporting requirement, replacing Schedule SSA.  To learn more about the filing requirements for the new form, please click here to read the Employee Benefits & Executive Compensation Client Service Group’s Alert published March 28, 2011.

Supreme Court Says Two Exemptions are Unavailable to Companies Trying to Protect Their Information from Disclosure under FOIA

Companies frequently find that information they submit to the Federal government is sought by others — perhaps competitors — under the Freedom of Information Act.  The submitting company may be able to block the disclosure if the information falls within one of the exemptions in FOIA.  On March 1 the Supreme Court made two of those exemptions unavailable to companies.  To read more about the Court’s decision in FCC v. AT&T Inc. please  click here to read the Government Contracts Team Alert published March 3, 2011

FTC Takes a Bite Out of Cookie-Based Behavioral Advertising

On March 14, 2011, the Federal Trade Commission announced a settlement with a behavioral advertising company that places cookies in consumers’ internet browsers to track online activities.  This settlement marks one of the agency’s first enforcement actions against a behavioral advertising company and signals that the FTC has begun to act on its repeated warnings about scrutinizing behavioral advertising more closely.  To learn more about the settlement, please click here to read the Consumer Protection Group’s Alert published March 17, 2011.

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February 2011 Client Alerts

February 2011 Client Alerts

March 1, 2011

Authored by: Jeannie Osborne

CPSC Opens Business Registration for New Consumer Product Safety Information Database

The new Consumer Product Safety Information Database is now available online on a trial basis, and will launch officially in March at www.SaferProducts.gov.  The Database allows a broad range of people to file so-called “reports of harm” informing the CPSC about an incident or concern that the submitter believes is an indication a product is unsafe or potentially hazardous.  To read more the database, please click here to see the Alert published by the Retail Team on February 3, 2011.

IRS Reverses Course — Breast Pumps and Other Lactation Supplies are Now Deductible Medical Expenses Subject to Reimbursement under FSAs, HRAs and HSAs

In Announcement 2011-14, the Internal Revenue Service concluded that breast pumps and supplies that assist lactation are medical care under Section 213(d) of the Internal Revenue Code and can therefore be reimbursed under a health flexible spending arrangement.  To learn more about this announcement, please click here to read the Feburary 22, 2011 Alert published by the Employee Benefits & Executive Compensation Client Service Group.

Patent Reform Act of 2011

On January 25, 2011, The Patent Reform Act of 2011 was introduced by Senator Leahy (D-VT) with bipartisan support.  The Bill is the latest installment of Congress’ attempts to pass patent legislation reform, following the Patent Reform Act of 2009 and other bills in recent years, all of which died in Congress.  To learn more, please click here to read the February 22, 2011 Bulletin published by the Intellectual Property Client Service Group.

Wide-Open House Budget Debate Moves Toward Finish Line

The House continues to work towards completing a major budget bill to fund the federal government for the remainder of the 2011 fiscal year.  Of the hundreds of amendments which have been offered and voted upon, major energy and environment-related amendments would reverse a law that requires the federal government to pay the legal costs of some environmental plaintiffs, de-fund the White House climate czar’s office, prevent an EPA appeals board from revoking air permits for oil exploration in the Arctic, and de-fund the EPA’s greenhouse gas emissions registry.  To read more about the proposed amendments and other energy updates, please click here to see the February 18, 2011 Energy Update.

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January 2011 Client Alerts

January 2011 Client Alerts

February 3, 2011

Authored by: Jeannie Osborne

SEC Issues Final “Say-on-Pay” and “Golden Parachute” Rules

On January 25, 2011, the Securities and Exchange Commission released its final “say-on-pay” and related golden parachute rules to implement the provisions of Section 951 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.  For a summary of the rules, please click here to read the Bulletin published by the Corporate Finance and Securities Group on January 27, 2011.

SEC Issues Proposed Rules for “Conflict Minerals” Disclosure

The Securities and Exchange Commission has issued proposed rules to implement the “conflict minerals” disclosure requirements in Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 1502 amended the Securities Exchange Act of 1934 (the “Exchange Act”) by adding Section 13(p). Section 13(p) requires the SEC to promulgate disclosure rules concerning the use of certain minerals that originate in the Democratic Republic of the Congo or its adjoining countries (the “DRC countries”).  For more information on the proposed rules, please click here to read the Client Alert published by the Corporate Finance and Securities Client Service Group on January 3, 2011.

When All Appropriate Inquiry Isn’t Enough: Court Highlights the Significance of Other Factors in the Bona Fide Prospective Purchaser Defense

Anyone who has been involved in a real estate transaction relating to commercial or industrial property has likely dealt with conducting “All Appropriate Inquiry” into the site, which generally includes the preparation of a Phase I Environmental Site Assessment and may include Phase II sampling work. All Appropriate Inquiry (“AAI”) is one necessary component of the “bona fide prospective purchaser” (“BFPP”) defense established under the 2002 Brownfields amendments to Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). The BFPP defense is intended to protect property owners from liability for contamination that clearly occurred prior to their period of ownership. However, conducting AAI is not the only prerequisite to establishing a BFPP defense. The BFPP requirements beyond AAI are highlighted in Ashley II of Charleston, LLC v. PCS Nitrogen, et al., 2010 U.S. Dist. LEXIS 104772 (D.S.C. Sep. 30, 2010), one of the first cases to address in detail the BFPP defense. To learn more about this case, please click here to read the Client Alert published by the Environmental Client Service Group on January 3, 2011.

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Client Alerts November 2010

Client Alerts November 2010

January 9, 2011

Authored by: Jeannie Osborne

Criminal Action Against In-House Lawyer Underscores Risks in Dealing with Government Investigations

Lawyers who deal with government investigators and regulators should take note of a recent federal criminal action charging a former in-house lawyer at GlaxoSmithKline for statements she made while representing the company in a government investigation.  For more information, please click here to read the Client Alert published by the White Collar Defense & Investgations, Securities Litigation and Enforcement practice group on November 29, 2010.

Qualified Retirement Plans: Year-End Compliance

Although 2010 has been dominated by new healthcare-related laws and regulations requiring significant design changes to group health plans, as discussed in a prior alert, qualified retirement plans are not immune to new requirements that must be addressed by the end of 2010.  For more information, please see the Client Alert published b y the Employee Benefits and Executive Compensation Client Service Group on November 30, 2010.

SEC Proposed Whistleblower Rules Attempt to Balance Competing policy Considerations

The Securities and Exchange Commission has now issued proposed rules to implement the whistleblower provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank“). Dodd-Frank amended the Securities Exchange Act of 1934 by adding Section 21F. Section 21F directs the SEC to pay awards to whistleblowers who provide the SEC with information about securities laws violations that lead to successful enforcement actions. Proposed Regulation 21F defines statutory terms, establishes the standards and procedures for rewarding eligible whistleblowers and generally seeks to explain the program.  For more information on the proposed rules, please click here to see the Client Alert published by the Corporate Finance and Securities Client Service Group on November 11, 2010.

SEC Proposes “Family Office” Exemption from Definition of Investment Advisers

On October 12, 2010, the U.S. Securities and Exchange Commission (the “SEC”) proposed Rule 202(a)(11)(G)-1 (the “Proposed Rule”) under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) to define family offices for purposes of excluding them from the definition of “investment adviser.”  For more information on the Rule, please click here to see the Client Alert published by the Private Client practice group on November 1, 2010.

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October 2010 Client Alerts

October 2010 Client Alerts

November 2, 2010

Authored by: Jeannie Osborne

IRS Has Announced its 2011 Cost-of-living Adjustments for Retirement Plans

On October 28 the IRS issued a press release announcing its 2011 cost-of-living adjustments for retirement plans.  For a chart reflecting the qualified plan limits for years 2008-2011, please click here to see the Employee Benefits & Executive Compensation Group’s Client Alert published October 28, 2010.

SEC Issues Proposed “Say-on-Pay” and “Golden Parachute” Rules

The SEC has released its proposed “say-on-pay” and related golden parachute rules to implement the provisions of Dodd-Frank set forth in new Section 14A of the Securities Exchange Act of 1934.  The comment period will close on November 18, 2010 and the SEC plans to issue final rules in early 2011.  For a discussion of the proposed rules, please click here to read the Bulletin published by the Corporate Finance and Securities Group on October 20, 2010.

Employee Benefits Provisions of the Small Business Jobs Act of 2010

On September 27, 2010, the Small Business Jobs Act of 2010 was signed into law.  While the Act mainly focuses on providing tax and other assistance to small businesses, it also includes provisions aimed at promoting retirement preparation that are not limited to small business.  For a discussion of these provisions, please click here to read the Employee Benefits & Executive Compensation goup’s client alert Alert published October 4, 2010.

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September 2010 Client Alerts

September 2010 Client Alerts

October 7, 2010

Authored by: Jeannie Osborne

Check It Out and Check It Off:  2010 and 2011 Group Health Plan Checklist

Several new laws and regulations from 2010 require significant design changes to group health plans and impose new notice requirements on plan sponsors.  For a checklist of the major changes which require implementation in 2010 or 2011 as well as a listing of enrollment and annual notices that group health plan sponsors should consider during open enrollment, please see the Client Alert published by the Employee Benefits & Executive Compensation Client Service Group on September 20, 2010.

New Medicare Enrollment Requirements Will Burden Providers and Suppliers

On September 22, 2010, the Centers for Medicare and Medicaid Services issued proposed rules that will dramatically change the enrollment process for Medicare providers and suppliers, including new enrollment following a change of ownership.  For more information on the new requirements, please read the Client Alert published by the Life Sciences and Health Care Client Service Group on September 22, 2010.

CMS Issues Regulations Changing the DMEPOS Supplier Standards

On August 27, 2010, the Centers for Medicare and Medicaid Services published final regulations in the Federal Register that impose new standards on suppliers of durable medical equipment, prosthetics, orthotics and suppliers.  Most of the requirements contained in the new regulations will take effect on September 27, 2010.  For more information on the regulations, please read the Client Alert published by the Life Sciences and Health Care Client Service Group on September 16, 2010.

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May 2010 Client Alerts

May 2010 Client Alerts

June 9, 2010

Authored by: Jeannie Osborne

Senate Adopts Corporate Finance and Executive Compensation Provisions in Financial Reform Bill

On May 27, the Senate released the text of the financial reform bill that was passed the prior week.  The bill, known as the “Restoring American Financial Stability Act of 2010” or the “Act,” would result in sweeping reforms to the financial industry.  However, it also contains a number of significant provisions that would affect corporate governance and executive compensation at public companies, as well as Regulation D private placements, whistleblowers and beneficial ownership reporting.  This Corporate Finance and Securities Bulletin outlines some of the more important provisions of the Act.

Click here for a complete copy of the Bulletin.

FTC Extends Deadline for Identity Theft Red Flags Rule to December 31, 2010

The Federal Trade Commission announced that it will further delay enforcement of the “Red Flags” Rule through December 31, 2010, while Congress considers legislation that would affect the scope of entities covered by the Rule. The announcement does not affect other federal agencies’ enforcement of the original November 1, 2008 deadline.  As a result, the extension does not apply to banks and other financial institutions that are covered by the Red Flags which were separately issued by the Federal Reserve, FDIC, Treasury Department, or National Credit Union Administration.  This Antitrust, Franchise & Consumer Client Bulletin discusses the announcement.

Click here to read the complete Bulletin.

Agencies Issue Interim Rules on Dependent Health Care Coverage of Children to Age 26

On May 10, the Internal Revenue Service, the Department of Labor and the Department of Health and Human Services jointly issued interim final regulations addressing the provision of dependent coverage of children to age 26 under the Patient Protection and Affordable Care Act, as amended.  

Click here for a copy of the Employee Benefits & Executive Compensation Client Bulletin regarding the new regulations.

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April 2010 Client Alerts

April 2010 Client Alerts

May 1, 2010

Authored by: Jeannie Osborne

IRS Releases Guidance on Tax Treatment of Employer-Provided Health Care Coverage for Children under Age 27.

On April 27 the IRS issued Notice 2010-38 discussing the tax treatment of employer-provided medical care coverage for employees’ adult children up to age 27.  For more information please click here for a copy of the Employee Benefits and Executive Compensation Bulletin which discusses the Patient Protection and Affordable Care Act enacted in late March and outlines the guidance provided in the IRS Notice.

Cobra Premium Subsidy Extended

On April 15 President Obama signed into law H.R. 4851, the Continuing Extension Act of 2010 extending the eligibility period for the COBRA subsidy until May 31, 2010.  For more information, please click here for a copy of the Employee Benefits and Executive Compensation Client Bulletin which provides an overview of the extension provisions and highlights what group health plan sponsors need to know.

Antitrust Agencies Propose New Merger Guidelines

On April 20 the Federal Trade Commission released provisions of the Horizontal Merger Guidelines.  Last updated in 1997, the Proposed Guidelines provide the business community with an overview of how antitrust agencies analyze proposed mergers between competitors.    Click here for a copy of the Antitrust, Franchise & Consumer Law Client Bulletin which outlines the signficant changes proposed to the guidelines.

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