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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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January 2012 Client Alerts

Federal Trade Commission Increases Interlocking Directorates Thresholds

On January 24, 2012, the Federal Trade Commission announced its annual revision of the interlocking directorates thresholds under Section 8 of the Clayton Act.  The new thresholds were effective January 27, 2012.   The purpose of Section 8 of the Clayton Act is to prevent a “person” from serving as an officer or director of corporations that compete with one another in the marketplace, unless that competition is very limited.   For more information on the new thresholds, please click here for the January 27, 2012 Alert published by the Antitrust and Competition Client Service Group.

Premerger Notification Thresholds Increased

Effective February 27, 2012, the jurisdictional thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, will be increased.  Pursuant to statutory amendments made in 2000, the thresholds are annually adjusted based on changes in gross national product.  One key effect of this year’s indexing is that transactions will only be reported if the Size of Transaction exceeds $68.2 million, an increase over last year’s $66 million threshold.  To read more about the 2012 thresholds, please click here for the Alert published by the Antitrust and Competition Client Service Group on January 27, 2012.

SEC Changes Settlement Policy for Enforcement Actions With Parallel Criminal Proceedings

The SEC announced in January a significant change in its settlement policy for civil enforcement actions in which the defendant is also subject to parallel criminal proceedings.  Under the SEC’s new policy, any defendant who has admitted to or been found guilty of criminal conduct cannot settle parallel SEC charges without also admitting the SEC’s allegations.  For more information on the new policy, please click here to read the Alert published by the White Collar Defense & Investigations and Securities Litigation & Enforcement Client Service Groups on January 13, 2012.

NAD Reviews Use of Facebook’s “Like” Feature in Promotions

In 2010, Facebook offered its users the ability to click a button indicating that they “like” a company or a product.  Once clicked, the “liked” product appears on a user’s Facebook Wall and the user’s screen name or icon could also appear on the company’s Facebook page along with other users who liked the product.   Companies quickly realized the benefit of being “liked,” and encouraged consumers to “like” their products by making incentives available only to those who liked the product.  This practice is often referred to as a “like-gated” promotion.  The use of these promotions has raised consumer protection questions, and the National Advertising Division of the Council for Better Business Bureaus (“NAD”) has recently issued its first decision involving a like-gated promotion.  To learn more about the decision and allegations considered, please click here to read the Bulletin published by the Internet & New Media Group on January 3, 2012.  

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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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March 2010 Client Alerts

March 2010 Client Alerts

April 1, 2010

Authored by: Jeannie Osborne

Third Circuit Rules Secured Lender Not Entitled to Credit Bid at Sale of Collateral Under a Cramdown Plan

On March 22, 2010, the Third Circuit in a split decision joined the Fifth Circuit in holding that a debtor may sell its assets under a plan of reorganization without permitting a secured lender to credit bid by offsetting its secured claim against the purchase price.  This decision may have major implications for secured lenders and may lead to more contested confirmation hearings and litigation over valuation.  For more information, please read the Client Alert published by the Bankruptcy, Restructuring and Creditors’ Rights Client Service Group on March 30, 2010.

Summary of the Federal Reserve Board’s Final Gift Card Rules

On March 23, 2010, the Federal Reserve Board issued its final rule, a summary and analysis of the final rule, and the official staff interpretation of the final rule in connection with Title IV of the CARD Act.  The Final Rules are comparable to the proposed rules that were issued in November, and follow the gift card related provisions set forth in the CARD Act.  For a brief summary of key provisions of the Rules, please read the Client Alert published by the Financial Institutions Client Service Group on March 29, 2010.

Proposed Amendments to the Federal Sentencing Guidelines Emphasize the Importance of Having an Effective and Compliant Records Management Program – What Every Business Needs to Know

In January, the United States Sentencing Commission published proposed changes to the Federal Sentencing Guidelines.  Public hearings on the proposed amendments were held in March.  The Commissioners are to take final action on the proposals in April.  The amendments will be effective in November, unless Congress intervenes.  A major focus of the proposed amendments is on the document retention component of records management.  For a discussion of the proposed changes, please read the Client Alert published by the Records Management Team on March 24, 2010.

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November 2009 Client Alerts

November 2009 Client Alerts

November 30, 2009

Authored by: Robert Klingler

The FTC Postpones the Deadline for Red Flags Rule Compliance Again to June 1, 2010

In a last minute announcement, the Federal Trade Commission has indicated that it will delay the compliance date for the “Red Flags Rule” yet again. Affected businesses now have until June 1, 2010 to develop and implement a plan as required under the Red Flags Rule.

For more information, please read the client alert published by Bryan Cave LLP’s Consumer Protection Client Service Group on November 2, 2009.

EEOC Releases New Workplace Poster

The Equal Employment Opportunity Commission announced last week that it has revised and released for posting the notice that employers covered by federal anti-discrimination laws must display in the workplace.

For more information, please read the client alert published by Bryan Cave LLP’s Labor and Employment Client Service Group on November 2, 2009.

House Unveils Health Reform Bill

The U.S. House of Representatives has unveiled its health reform legislation. Among its provisions include an excise tax on medical devices that is expected to cost the industry $20 billion over the next ten years. The bill also requires device manufacturers to submit the product information to a national registry.

For more information, please read the client alert published by Bryan Cave LLP’s Food and Drug Administration Practice on November 3, 2009.

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