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July 2014 Client Alerts

Practice groups throughout Bryan Cave often prepare alerts on issues of interest to our clients and friends. Listed below are the Client Alerts published in July 2014.  Please click on the title to read the full text of the Alert.

Good News for In-House Counsel:  The D.C. Circuit Court Restores Attorney-Client Privilege for Internal Investigations, published by the White Collar Defense and Investigations, Securities Litigation and Enforcement and Government Contracts practice groups on July 2, 2014.

Federal Antitrust Laws:  A New Tool to Prohibit Pre-Petition Coordination Among Creditors?, published by the Bankruptcy, Restructuring and Creditors’ Rights group on July 14, 2014.

No More Blurred Lines?  Federal Courts Rule That Conditional Discovery Objects are No Longer Proper Under Federal Rules of Civil Procedure, published by the Commercial Litigation practice group on July 30, 2014.

Fraud Outweighs Fairness:  Government Contractor Cannot Recover the Value of Its Services, published by the White Collar Defense and Investigations practice on July 16, 2014.

Seventh Circuit Rejects Judge Shuffling in Multidistrict Litigation Cases, published by the Securities Litigation and Enforcement group on July 3, 2014.

No False Claims Act Liability for Claiming Private Money:  Fifth Circuit Rejects Broad FCA Interpretation, published by the While Collar Defense and Investigations practice group on July 8, 2014.

SEC Brings Enforcement Action Under MCDC Initiative, published by the Broker-Dealer Litigation, Arbitration and Regulatory practice on July 16, 2014.

No FCPA Liability or Penalties for Former Noble Executives:  SEC Settles FCPA Claims on Eve of Trial, published by the Global Anti-Corruption/Foreign Corrupt Practices Act Team and the White Collar Defense and Investigations practice on July 7, 2014.

The D.C. Circuit Imposes Some Due Process in the CFIUS Review Procedures But the Impact May be Limited and, in Any Case, Short-Lived, published by the National Security practice on July 18, 2014.

BNP Paribas Pleads Guilty to Criminal Charges and Collar Clearing Rights Are Suspended in the Largest U.S. Sanctions Case to Date, published by the White Collar Defense and Investigations Global Anti-Corruption/Foreign Corrupt Practices Act Team and the International Trade practice on July 2, 2014.

Failure To Appear At a Hearing — A Risky Tactic?, published by the International Arbitration Commercial Litigation practice on July 8, 2014.

Arbitration and Competition Law – New Prospects of Recovery for Victims of Antitrust Infringements, published by the Antitrust and Competition and International Arbitration groups on July 16, 2014.

Enforcement of CIS Court Judgments in England, published by the International Arbitration practice on July 4, 2014.

New UK Guidance on coping with Small Bribes and Facilitation Payments, published by the Global Anti-Corruption/Foreign Corrupt Practices Act Team on July 3, 2014.

EU & Competition Law Update – July 2014, published by the European Antitrust and Competition groups on July 7, 2014.

 EU Adds Individuals and Entities to Sanctions List and Expands Grounds for Sanctions (IRB No. 525), published by the International Trade CEE and CIS Team on July 28, 2014.

Interns Can Turn Out to Be Expensive for Companies, published by the Labor and Employment Client Service Group (Hamburg, Frankfurt) on July 21, 2014.

UK Labor and Employment Bulletin – July 2014, published by the London  Labor and Employment group on July 21, 2014.

EU Commission Proposes Radical Reform of EU Merger Regulation, published by the Antitrust and Competition practice group on July 14, 2014.

 

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May 2014 Client Alerts

Practice groups throughout Bryan Cave often prepare alerts on issues of interest to our clients and friends. Listed below are the Client Alerts published in May 2014.  Please click on the title to read the full text of the Alert.

SEC Confirms that FINRA May Investigate Non-FINRA Companies Controlled by a FINRA Member, published by the Broker-Dealer Litigation, Arbitration and Regulatory Practice on May 29, 2014.

CFTC Hopes To Attract More Whistleblowers With Issuance of First Award, published by the White Collar Defense and Investigations, Securities Litigation and Enforcement, and Labor and Employment Investment Management practice groups on May 22, 2014.

Court Strengthens Statute of Limitations Defense Against the SEC, published by the White Collar Defense and Investigations, Securities Litigation and Enforcement group on May 15, 2014.

Spreading the Sunshine in Private Equity:  SEC’s Observations from OCIE’s Presence Exams of Private Equity Fund Advisers, published by the Investment Management and Private Equity practice groups on May 14, 2014.

IRS Issues Guidance on Retiree Health Benefits Funded Through Captive Insurance Subsidiary, published by the Tax Advice and Controversy and Captive Insurance practice groups in May 14, 2014.

New Endangered Species Act Rules and Policy Proposedpublished by the Environmental group on May 15, 2014.

Russian Sanctions Creep (IRB No. 523), published by the International Trade CEE and CIS Team on May 13, 2014.

EU Expands Basis for Ukraine-related Sanctions Targets (IRB No. 523), published by the International Trade CEE and CIS Team on May 13, 2014.

At Last:  DoD Codifies Procedures for Addressing Foreign Ownership, Control or Influence (“FOCI”) Concerns, published by the National Security practice on May 6, 2014.

International Centre for Dispute Resolution (“ICDR”) Draft Procedures and Rules, published by the International Arbitration practice on May 8, 2014.

EU to Make It Easier to Confiscate Proceeds of Crime, published by the Global Anti-Corruption/Foreign Corrupt Practices Act Team on May 20, 2014.

Who is a Foreign Official Under the FCPA?  U.S. Appeals court Affirms Government’s Broad Reading of Instrumentality, published by the Global Anti-Corruption/Foreign Corrupt Practices Act Team on May 19, 2014.

Imminent Consumer Contracts Regulations Affecting Hotel Operators and Travel Agencies — Summary of Key Changes, published by the London Technology, Entrepreneurial and Commercial Practice and Retail Team on May 23, 2014.

Bankers Beware:  Global Financial Institutions and Regulated Firms Remain in the UK’s Firing Line, published by the Global Anti-Corruption/Foreign Corrupt Practices Act Team on May 19, 2014.

Hedging the Hedge — Are Hedging Losses Recoverable in Commodities Contracts, published by the Singapore Energy and Natural Resources group on May 14, 2014.

Labor and Employment Bulletin – May 2014, published by the London Labor and Employment practice on May 12, 2014.

EU & Competition Law Update – May 2014, published by the European Antitrust and Competition practice group on May 9, 2014.

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January 2014 – Bryan Cave Client Alerts

Client service groups throughout Bryan Cave LLP often prepare alerts on issues of interest to our clients and friends.  Listed below are the client alerts published in January, 2014.  Please click on the title to read the full text of the Alert.

Qualified Plan Limits, published by Employee Benefits and Executive Compensation, January 21, 2014

California “Do-Not-Track” Law Has Gone Into Effect, Requiring Some Websites to Revise Privacy Policy, published by the Data Privacy and Security Team, January 9, 2014

Federal Trade Commission Increases Interlocking Directorates Thresholds, published by Antitrust and Competition, January 24, 2014

Eleventh Circuit Holds that Affiliates of Indicted Contractor May Be Suspended from Government Contracting Indefinitely, Despite No Wrongdoing, published by Government Contracts, January 3, 2014

‘Single Asset Real Estate’:  A Concept in Need of Redefinition, published by Bankruptcy, Restructuring and Creditors’ Rights, January 15, 2014

Tax Court Upholds Captive Insurance Arrangement Despite Parent Guarantee and Captive’s Investment in Stock of Parent, published by Tax Advice and Controversy, January 16, 2014

Investment Funds Maintained by Charitable Organizations, published by the Fund Formation Team and Tax Exempt and Charitable Planning, January 7, 2014

Circuit Decision Requires Production of Foreign Bank Account Records, Thus Emphasizing Importance of IRS Amnesty Program, published by Tax Advice and Controversy and White Collar Defense and Investigations, January 9, 2014

SEC ALJ Imposes Six Month Bar on China Affiliates of Big Four Accounting Firms, published by White Collar Defense and Investigations and International Trade, January 24, 2014

Premerger Notification Thresholds Increased, published by Antitrust and Competition, January 24, 2014

EPA Adopts New ASTM Phase I Standard, published by the Environmental group, January 15, 2014

While Some Things Changed, Much Stays the Same as the EU and the United States Relax Sanctions Against Iran (IRB No. 517), published by International Trade, January 28, 2014

SCOTUS Limits the Exercise of General Personal Jurisdiction Over Multi-National Parent Corporations:  Daimler AG v. Bauman, published by Commercial Litigation, January 29, 2014

SEPA — Is There Some Respite for European and US Companies?, published by Financial Services, January 13, 2014

EU & Competition Law Update – January 2014, published by Antitrust and Competition, January 14, 2014

Overhaul of the BIS Unverified List Imposes New Requirements for Exporters (IRB No. 516), published by International Trade, January 21, 2014

UK Labor and Employment Law Bulletin – January 2014, published by Labor and Employment, January 23, 2014

Lokpal:  Finally a force to combat corruption in India, published by the India Practice Group, January 8, 2014

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February 2014 – Bryan Cave Client Alerts

Practice groups throughout Bryan Cave often prepare alerts on issues of interest to our clients and friends.  Listed below are the client alerts published in January 2014.  Please click on the title to read the full text of the Alert.

Voluntary for Now:  Federal Cybersecurity Framework Likely to Become the Base-Line Requirement for Critical Infrastructure Organizations and, Potentially, Many Other Businesses, published by the National Security Data Privacy and Security Team, February 20, 2014.

Managing Legal Risks:  Trends in Data Privacy & Security Class Action Litigation, published by the Data Privacy and Security Team, February 27, 2014.

Bankruptcy Court Limits Credit Bid Right In An Unnecessarily “Rushed” Sale Process, published by the Bankruptcy, Restructuring and Creditors’ Rights Practice, February 14, 2014.

Proposed Regulation Would Limit Ability to Restrict Public Disclosure of Product Information Submitted to the CPSC, published by the Consumer Protection and Data Privacy Practice, February 27, 2014.

FINRA Levies Record Fine for AML Violations, published by the Securities litigation and Enforcement and White Collar Defense and Investigations Practice Groups.

FINRA’s Sweep Letter Targets Cybersecurity, published by the Broker-dealer Litigation, Arbitration and Regulatory Practice, February 10, 2014.

Managing Legal Risks:  Trends in Advertising Class Action Litigation (2013 Year-In-Review), published by the Consumer Protection and Data Privacy and Class and Derivative Actions Practice Groups, February 18, 2014.

DINP Listed as Carcinogen Under Prop. 65, published by the Retail Team, February 28, 2014.

OCIE’s “Never-Before Examined Initiative,” published by the Broker-Dealer Litigation, Arbitration and Regulatory Practice.

Attorney-Client Privilege in FCPA Investigation Nullified Based on Crime-Fraud Exception, published by the White Collar Defense and Investigations, Internal Trade, Global Anti-Corruption/Foreign Corrupt Practices Act Team, February 25, 2014.

Yet Another List to Check:  the Foreign Sanctions Evaders (IRB No. 518), published by the International Trade Group, February 21, 2014.

A Year in the Garden, published by the London labor and Employment Practice, February 19, 2014.

EU & Competition Law Update – February 2014, published by the European Antitrust and Competition Practice, February 10, 2014.

PRC Labor Activity Issues Interim Provisions on Labor Dispatch, published by the Asian Labor and Employment International Practice, February 25, 2014.

The Introduction of Time Limits in Works Council Consultations:  An Attempt at Streamlining Employer-Employee Relations, published by the Paris Labor and Employment Practice, February 3, 2014.

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September 2012 Client Alerts

Health Care Reform:  Guidance on Play or Pay and 90-Day Waiting Period

On August 31, 2012, the Departments of Labor, Treasury, and Health and Human Services jointly issued temporary guidance on two related health care reform issues:  (i) determining full-time status of employees for purposes of the employer “play or pay” penalty and (ii) implementation of the 90-day maximum waiting period adjustment.  As the two pieces of guidance refer to one another, it is important to understand them both.  To learn more about the guidance issued on these two health care reform issues, please click here to read the Alert published by the Employee Benefits and Executive Compensation Client Service Group on September 24, 2012.

U.S. Army Solicits $7 Billion in Renewable Energy Contracts

The US Army Engineering and Support Center is accepting bids for new renewable and alternative energy projects to provide electrical utility services to sites under the jurisdiction of the Department of Defense across the continental United States.  Up to $7 billion will be available over the course of 10 years to purchase energy produced by renewable and alternative projects to help the Department meet its mandate to produce or procure at least 25% of its total facility energy needs by the year 2025.  To learn more about the bidding process, please click here to read the Alert published by the Energy and National Resources Client Service Group on September 7, 2012.

With Recent Changes Issued by the CFPB, Final Remittance Transfer Regulations to Become Effective February 7, 2013

One provision of Dodd-Frank that generated comparatively little concern when it was passed was section 1073, “Remittance Transfers.”  Closer examination and subsequent issuance of regulations has now drawn scrutiny to this provision, which was already so detailed and lengthy when it was inserted into the Act that there was little room for modification by the CFPB when the bureau issued its implementing regulations.  To learn more about the provision and how to comply in time for the February 7, 2013 effective date, please click here to read the Alert published by the Financial Institutions Client Service Group on September 19, 2012.

Comments on the “Effects of Foreign Policy-Based Export Controls” submitted September 21, 2012

To read the comments submitted by Stanley J. Marcuss and George F. Murphy of the  International Trade Group on the foreign policy export controls maintained by the Bureau of Industry and Security, please click here.

A New Law on Sexual Harassment in France

Since the initial enactment of anti-sexual harassment legislation in France in 1992, sexual harassment was not only prohibited under the French Labor Code but was also a punishable offense under the Penal Code.  However, the definitions in the Labor Code and Penal Code were both vague and not entirely in sync, and the French Constitutional Counsel ruled them unconstitutional in May of this year.  In order that sexual harassment “not go unpunished,” the French Parliament has adopted a new law.  To read more, please click here for the Briefing published by the Labor and Employment Client Service Group (Paris) on September 24, 2012.

German Labor Law & HR 2/2012

For a discussion of the “Revolving Door Clause” included in the German Temporary Employment Act governing the use of employing temporary workers, please click here to read the Newsletter published by the Labor and Employment Client Service Group (Hamburg) on September 25, 2012.

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August 2012 Client Alerts

SEC Issues Final “Conflict Minerals” Rule

The SEC has issued its final rule to implement the “conflict minerals” disclosure requirements in Dodd-Frank.  The SEC originally issued proposed rules with a comment period that was to have ended in January 2011.  Final rules were required to be published by April of 2011.  The SEC formally extended the public comment period by 30 days and then spent nearly 17 months receiving thousands of letters, meeting with many “interested persons,” and hosting an SEC Roundtable.  Dodd Frank amended the SEC Exchange Act of 1934 by adding a requirement that the  SEC publish disclosure rules concerning the use of certain minerals that originate in the Democratic Republic of the Congo.  To learn more about the disclosures required by the rule, please click here to read the Bulletin published by the Corporate Finance and Securities Client Service Group on August 29, 2012.

The Contraceptive Mandate:  What Do Religious Employers Do Now?

In a landmark 5-4 decision announced in June, the United States Supreme Court upheld the key provisions of the Patient Protection and Affordable Care Act (ACA).  Perhaps most noteworthy for religious employers are the provisions requiring group health plans to provide preventive health services without charging a co-pay.  In August, the Department of Health and Human Resources (HHS) adopted guidelines outlining the required preventive health care for women.  That guidance requires coverage for all FDA-approved contraceptive services, including the “morning after” pill and the “week after” pill.  Coverage of these services at no cost is required for plan years beginning on or after August 1, 2012.  To learn more about the decision and exemptions for certain employers, please click here to read the Alert published by the Religious Organization Team on August 7, 2012.

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July 2012 Client Alerts

Two Key Rulings of the Supreme Court

A “Common Sense” Approach to Overtime Exemptions.  The Supreme Court’s recent ruling in Christopher v. SmithKline Beecham Corp., DBA GlaxoSmithKline established that when classifying employees as exempt or nonexempt under the Fair Labor Standards Act, employers should not abandon common sense and industry practice.  The Christopher case puts the Department of Labor and potential plaintiffs on notice that unreasoned and overly narrow interpretations of the exemptions should be rejected by courts, especially when such interpretations would subject business to unfair surprise.

Supreme Court Strikes Down Much of Arizona Immigration Law.  Arizona enacted the Support our Law Enforcement and Safe Neighborhoods Act in 2010 in an attempt to address immigration concerns within its borders.  In a 5-3 decision, the Supreme Court struck down a significant part of the Arizona law.

For summaries of these two important rulings of the Supreme Court, please click here for the Labor and Employment Client Service Group’s Alert published July 16, 201.

New York Appeals Court Decision Highlights Defenses for Financial Institution Defendants Against Structured Product Claims.

A recent decision from the New York Court of Appeals highlights some of the winning arguments financial-institution defendants can make in state-court litigation brought by investors in structured financial products.  In Oddo Asset Management v. Barclays Bank PLC, the Court of Appeals affirmed the dismission of claims for aiding and abetting breach of fiduciary duty and tortious interference with contract.  Although the Court did not define any new legal principles, its decision illustrates the ways existing law can be applied to defeat claims against defendants alleged to have played an important role in the distribution of failed investments.  To learn more about the decision in this case, please click here to read the Securities Litigation and Enforcement Client Service Group’s Alert published July 9, 2012.

Employee Testimonials Can be Risky Business

Online retailers often permit (and encourage) consumers to review their products.  Reviews — whether done on the retailer’s website or on a third-party website — serve a dual purpose of engaging consumers to interact with the retailer and providing a ready source of testimonials that can be used in future marketing.  Over the past several years the FTC has warned that consumers can be deceived when a testimonial is written by a person that has a material connection with the retailer.  The FTC has launched at least a half-dozen investigations involving deceptive testimonials, and, in early July, the FTC announced its largest testimonial related settlement to date — $800,000.  To read more about how retailers can avoid liability, please click here to read the Alert published by the Retailer & Consumer Products Group on July 10, 2012.

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June 2012 Client Alerts

What do video game, music, and free online telephone networks have in common?  If your employees use them they can lead to a FTC data security investigation.

Although the days of Napster and Gnutella may be over, the technology upon which those applications were based — peer-to-peer networks or “P2P” — is alive and well in modern-day programs that share video games and music.  As two recent Federal Trade Commission enforcement actions illustrate, companies that permit employees to use P2P applications — either knowingly or unknowingly — may face government investigations and possible liability.  To learn more, please click here to read the Bulletin published by the Data Privacy & Security Team on June 19, 2012.

FTC Cracks down on the Collection of Social Media Data For Employment Decisions

A survey released this year indicates that in some industries almost 40% of employers reviewed job candidates’ profiles on social media sites before making employment decisions.  Ordering a candidate’s social media history is, in many companies, becoming as routine as ordering a credit report or background check.  Most employers do not realize, however, that the Federal Trade Commission has taken the position that social media reports share something else with credit reports — they are covered under the privacy protections of the Fair Credit Reporting Act.   In June the FTC filed a lawsuit in the Central District of California against a company which marketed social media reports to employers to use as “a factor in deciding whether to interview a job candidate or whether to hire a job candidate after a job interview.”  To read more, please click here to read the Bulletin published by the Data Privacy & Security Team on June 14, 2012.

Record Settlement in a Sanctions Case Reached by ING Bank, N.V.

On June 12, 2012, ING Bank, N.V. settled alleged violations of U.S. trade sanctions with the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) for a record $619 million penalty.  ING Bank’s violations of OFAC sanctions involved more than $1.6 billion worth of funds that were unlawfully routed through the United States despite U.S. sanctions.  To learn more about the allegations against ING Bank and the Settlement Agreement reached, please click here for the International Regulatory Bulletin No. 497 published June 13, 2012 by the International Trade Group.

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May 2012 Client Alerts

Oil and Natural Gas Production Subject to New Air Rules

On April 17, 2012, the EPA issued new rules targeting potential emissions associated with hydraulically fractured wells.  Other activities at upstream and midstream facilities are also impacted by the new rules.  To learn more about the new requirements to reduce emissions from the oil and natural gas production sector, please click here to read the Alert published by the Environmental and Energy and Natural Resources Client Service Group on May 1, 2012.

Medical Marijuana:  Arizona Law and the Americans with Disabilities Act

While employers have implemented policies to comply with Arizona’s medical marijuana laws, the federal Ninth Circuit Court of Appeals has issued a ruling that could exclude employees who use medical marijuana from protection under the Americans with Disabilities Act.  To read more about the ruling and the context of the issue considered by the Court, please click here to read the Alert published by the Labor and Employment Client Service Group on May 30, 2012.

Department of Labor Issues Further Fee Disclosure Guidance

On May 7, 2012, the Department of Labor issued Field Assistance Bulletin 2012-02, consisting of 38 questions and answers that clarify some of the issues raised since the issuance of final regulations on participant fee disclosures with respect to designated investment alternatives in individual account plans.  For a discussion of the issues covered, please click here to read the alert published by the Employee Benefits and Executive Compensation Client Service Group on May 29, 2012.

California Supreme Court Attempts to Clarify Entitlement to Attorneys’ Fees in Wage and Hour Claims

On April 30, 2012, the California Supreme Court issued its ruling in Kirby v. Imroos Fire Protection, a wage and hour matter that had been making its way through the court system since 2007.  In the ruling, the Court attempted to clarify and limit a prevailing party’s entitlement to attorneys’ fees for bringing certain types of wage and hour claims; however, its failure to address a glaring inconsistency with another law essentially nullifies the holding.  To read more about the ruling and how it further muddies the waters as to whether any party will receive fees for break claims, please click here  for the Alert published by the Labor and Employment Client Service Group on May 8, 20012.

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April 2012 Client Alerts

IRS Releases Proposed Rules on New Comparative Effectiveness Fee for Health Plans

On April 12, 2012 the IRS released proposed regulations regarding the collection of the fee for the Patient-Centered Outcomes Research Trust Fund (the “Fund”) under the Patient Protection and Affordable Care Act.  The Fund will be used to pay for the Patient-Centered Outcomes Research Institute which has the goal of helping health care providers and consumers make informed health decisions by synthesizing research comparing the outcome effectiveness of various treatments.  To learn more about proposed  regulations, the plans that will be impacted and the fee, please click here to read the Alert published by the Employee Benefits and Executive Compensation Client Service Group on April 23, 2012.

The Absolute Priority Rule:  An Endangered Species in Individual Chapter 11 Cases?

The absolute priority rule of Section 1129(b) of the Bankruptcy Code is a fundamental creditor protection in a Chapter 11 bankruptcy case.  The rule implements the general state-law principle that creditors are entitled to payment before shareholders unless creditors agree to a different result.  Recent litigation has raised the issue of  whether the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, which otherwise is a very creditor-friendly statute, modified the Bankruptcy Code in such a way as to eliminate the absolute priority rule if the debtor is an individual.  For a discussion of the issue, please click here to read the Alert published by the Bankruptcy, Restructuring and Creditors’ Rights Client Service Group on April 9, 2012.

Estate Planning in 2012

Generally, there are three basic goals of estate, generation skipping transfer and gift tax planning:  (1) the reduction of estate and gift taxes upon transfer; (2) the deferral of the estate, generation skipping transfer and gift tax burden; and (3) ensuring for the necessary liquidity to pay the taxes when they become due.  As a result of the present low interest rates and the drop in value of most types of assets, there may be opportunities to engage in some estate planning that may not be available to clients when interest rates rise and values are driven higher.  To learn about how to take advantage of these opportunities in 2012, while we are sure we have them, please click here to read a memorandum  published by Bryan Cave’s  Private Client Group on April 10, 2012.  

Data Breaches:  Will You Be Sued, And Can You Lower Risk?

According to a widely reported study, 90% of organizations have had at least one data breach in the last year and almost 60% had two or more breaches over the year.  In light of headlines describing multimillion-dollar data security breach settlements, it is no surprise that businesses fear the worst.   For a discussion of the litigation risks, range of liability and how businesses can lower the risks associated with security breaches, please click here to read an article written by the Data Privacy and Security Team attorneys and published in Law 360 on April 25, 2012.   

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