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December 2011 Client Alerts

SEC and FINRA Issue Guidance on Broker Dealer Branch Inspections

Broker-Dealers who face inspections from regulators should take heed of recent guidance provided by the two principal securities regulatory agencies.  The regulators are the Financial Industry Regulatory Authority (“FINRA”) and the SEC’s Office of Compliance Inspections and Examinations.  Their jointly issued “National Examination Risk Alert” offers guidance on policies and procedures that broker-dealers should consider for branch office inspection programs.  To learn more, please click here to read the Alert published by the White Collar Defense & Investigations and Securities Litigation & Enforcement Client Service Groups on December 13, 2011.

State Taxation of Former Residents’ Retirement Income

Recently, the New York State Department of Taxation and Finance issued an Advisory Opinion regarding whether New York State may impose income tax on distributions from a nonqualified deferred compensation plan made to a former resident.  The opinion, consistent with federal law, concluded that New York State may not impose tax on these retirement payments.  To read more about the Advisory Opinion, please click here for the Alert published by the Employee Benefits and Executive Compensation Client Service Group on December 28, 2011.

Reminder Regarding Information Reporting For Corporate Actions That Affect Stock Basis

Issuers of securities who undertook an “organizational action” in 2011 that affected the basis of such securities are required to file an information return reporting such action.  The Information Return for actions taken in 2011 was due to be filed January 17, 2012 for actions taken in 2011.  For more information on timing of returns for actions in 2012 and subsequent years, please click here to read the Tax Advice and Controversy Client Service Group Bulletin published December 30, 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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Client Alerts December 2010

Client Alerts December 2010

January 11, 2011

Authored by: Jeannie Osborne

IRS Issues Guidance Expanding and Modifying 409A Correction Program and New Reporting Requirements for Stock Transfers under ISOs and ESPPs

The IRS issued Notice 2010-80 (the “Notice”), which made favorable changes to the procedures for voluntary correction of failures to comply with Internal Revenue Code Section 409A (“Section 409A”) originally issued in Notice 2010-6. These changes should make the correction procedures more accessible and less burdensome.  For a summary of the changes, please click here to read the Executive Compensation Update published by the Employee Benefits and Executive Compensation Client Service Group on December 7, 2010.

Virginia Federal Court Rules Health Reform “Individual Mandate” Unconstitutional

On December 13, the U.S. District Court for the Eastern District of Virginia ruled that the individual mandate of the Patient Protection Affordable Care Act, as amended (“PPACA”), which requires individuals to purchase health insurance or pay a penalty, was unconstitutional. Virginia v. Sebelius, E.D. Va., No. 3:10-CV-188, memorandum opinion 12/13/10. The 42-page ruling declared that the penalty was beyond Congress’s Commerce Clause powers and could not be rationally construed as a tax.  To learn more about this ruling, please click here to read the Client Alert published by the Employee Benefits and Executive Compensation Client Service Group on December 16, 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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February 2010 Client Alerts

February 2010 Client Alerts

March 1, 2010

Authored by: Jeannie Osborne

SEC Publishes Interpretive Release on Climate Change Matters

Yesterday, the SEC published its interpretative release regarding disclosure requirements applicable to climate change matters. The release provides guidance on certain existing disclosure rules that may require a company to disclose the impact that business or legal developments related to climate change may have on its business.

For more information, please read the client alert published by Bryan Cave LLP’s Corporate Finance and Securities practice on February 3, 2010.

SEC Amends E-Proxy Rules to Provide Increased Flexibility

Yesterday the SEC approved amendments to the notice and access proxy, or “e-proxy,” rules.  The amendments will provide increased flexibility for companies regarding the format and content of the notice.

For more information, please read the client alert published by Bryan Cave LLP’s Corporate Finance and Securities practice on February 23, 2010.

Federal Judge Rules that Data Backup Tapes Need not be Retained for eDiscovery, Unless They are the Sole Source of Relevant Evidence

Federal Judge Shira Scheindlin of the Southern District of New York has ruled that it is not necessary for the litigants in a case now pending before her to retain and preserve all data backup tapes for eDiscovery:  “I am not requiring that all backup tapes must be preserved.  Rather, if such tapes are the sole source of relevant information (e.g., the active files of key players are no longer available), then such backup tapes should be segregated and preserved.”

For more information, please read the client alert published by Bryan Cave LLP’s Records Management team on February 9, 2010.

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October 2009 Client Alerts

FinCEN’s New Bank Secrecy Act Compliance Outreach Initiative Targeted at Depository Institutions With Assets Under $5 Billion

Yesterday FinCEN announced a new outreach initiative targeted at depository institutions with assets under $5 billion. The outreach initiative builds upon knowledge FinCEN previously gained from its meetings with larger financial institutions. As part of its ongoing outreach efforts, FinCEN is now seeking to engage smaller to moderate size depository institutions who are working to implement the four pillars of the Bank Secrecy Act regulatory regime: (1) policies, procedures and internal controls; (2) designation of a compliance officer; (3) ongoing training; and (4) independent testing.

For more information, please read the client alert published by Bryan Cave LLP’s Financial Institutions Client Service Group on October 15, 2009.

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Client Alert — June 26, 2009 to July 27, 2009

SEC Publishes Proposed New Rules Regarding Compensation and Corporate Governance Disclosure and the Proxy Solicitation Process

On July 10, 2009, the Securities and Exchange Commission (the “SEC” or the “Commission”) published the proposed new rules to enhance compensation and corporate governance disclosure in Items 401, 402 and 407 of Regulation S-K, which we reported earlier in our July 2, 2009 bulletin (available here),

For more information, please read the client alert published by Bryan Cave LLP’s Corporate Finance and Securities Client Service Group on July 17, 2009.

SEC Approves Elimination of Broker Discretionary Voting in Director Elections and Announces Proposed Rule Changes Regarding Executive Compensation and Corporate Governance and “Say on Pay” for TARP Recipients

Yesterday the SEC approved an NYSE proposal that will eliminate broker discretionary voting in director elections. Additionally, the SEC is proposing rule changes that would eliminate (1) certain proxy statement disclosures relating to executive compensation and corporate governance and changes to certain proxy solicitation rules and (2) require recipients of Troubled Asset Relief Program (“TARP”) funds to implement “say-on-pay” practices through the proxy solicitation process.

For more information, please read the client alert published by Bryan Cave LLP’s Corporate Finance and Securities Client Service Group on July 2, 2009.

Ricci v. DeStefano Supreme Court Finds that City Discriminated Against White Employees

On June 29, 2009, the United States Supreme Court rendered its much-anticipated decision in the case of Ricci v. DeStefano, 2009 WL 1835138 (2009), and declared that the City of New Haven, Connecticut had engaged in unlawful disparate treatment discrimination when it refused to implement the results of a promotional exam that revealed a substantial disparate impact on African-American employees. Specifically, the Court held that an employer may not use statistical disparity as the sole basis for changing an employment practice unless there is strong evidence indicating that continuing the practice would violate the disparate impact provisions of Title VII. Ricci is a significant development in the area of discrimination law, and will require employers to consider carefully a wide range of employment practices and decisions.

For more information, please read the client alert published by Bryan Cave LLP’s Labor and Employment Client Service Group on July 15, 2009.

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