The Prudent Investor Rule
August 31, 2006
The Prudent Investor Rule sets forth the basic rules governing the conduct of fiduciaries in the management of trust assets. While the legal standards for investment fiduciaries can be traced as far back as an 1830 Massachusetts court case creating the redecessor 'Prudent Man' standard, the Prudent Investor Rule is of much more recent origin.
Supreme Court Denies Priority Status for Unpaid Workers' Compensation Premiums
August 31, 2006
In a recent decision, the U.S. Supreme Court clarified an issue important to workers' compensation insurers and held that pre-petition unpaid workers' compensation premiums are not entitled to priority status under the Bankruptcy Code. <i>Howard Delivery Service, Inc., et. al. v. Zurich American Insurance Co.</i>, 126 S. Ct. 2105 (2006). This decision forecloses any disagreement among the Circuit Courts that unpaid workers' compensation premiums are entitled to priority status in a bankruptcy proceeding. In light of <i>Howard</i>, such claims are now considered merely general unsecured claims. Had the Supreme Court afforded priority status to such claims, they would have been paid prior to the claims of general unsecured creditors. Generally, priority expense claims receive a significant, if not 100% distribution, as opposed to general unsecured claims, which, in many circumstances, receive only pennies on the dollar. In a decision delivered by Justice Ruth Bader Ginsberg, joined by five other justices (Chief Justice John Roberts, Jr. and Justices John Paul Stevens, Antonin Scalia, Clarence Thomas, and Stephen Breyer), the Supreme Court's ruling not only brings consistency to this issue, but also provides opportunities for workers' compensation insurers to avoid forfeiture of payment of their premiums by financially troubled insureds.
Product Liability Insurance: Can You Not Have It?
August 31, 2006
Today's economy depends heavily on the enormous range of products that are sold daily to consumers. Indeed, consumer demand for both the necessities and conveniences of life ' everything from lawn mowers and ovens to trampolines and espresso makers ' drives many manufacturers constantly to develop new products to sell. In today's litigious society, however, virtually every product sold represents at least the potential for product liability exposure. Jury awards and settlements frequently make headlines ' everyday household appliances, such as coffee makers, fryers, and blenders, have yielded damage awards or settlements as high as $2.25 million. Injuries from lawn mowers have generated awards or settlements as high as $2.6 million. Even furniture has the potential to yield awards or settlements in excess of a million dollars. Moreover, product liability exposure has ruined certain industries, <i>eg</i>, asbestos, and small companies without adequate insurance protection could face bankruptcy from a single product recall.
Employment Agreements and Severance
August 31, 2006
Section 409A of the Internal Revenue Code was enacted on Oct. 22, 2004 in an effort to regulate executive pay practices through the federal tax system. Failure to account for ' 409A's impact can seriously and adversely affect the economics of employment agreements, severance agreements, and other similar plans or other arrangements providing for a deferral of compensation. Consequently, this article details how ' 409A applies to these arrangements.
Records Management Goes 'C Suite'
August 31, 2006
Just 5 years ago, if you were to approach a C-suite executive about discussing his company's record-keeping policies and procedures, you likely would have been shown the door. After all, wasn't record-keeping, file storage and electronic data retrieval the purview of middle management; perhaps residing somewhere in facilities management, information technology, or human resources? Today, a few years and numerous perspective-changing developments later, a topic that once resided quietly in back offices and file rooms has emerged at the epicenter of high-level business conversations around internal controls and risk management. What happened?
Disposal of Computer Systems: Removal of Information
August 16, 2006
Your business is in the process of upgrading and replacing its computer assets and deciding what to do with the old servers, computers, and laptops. You might sell them, donate them to charity, or simply toss them in the garbage because they are 5 or more years old. Before you choose any disposal option, however, you should first consider what type of information may be stored on those old computer assets and then determine whether your business has a duty to protect that information as part of the disposal process.
Retiring a Defined Benefit Pension Plan
August 01, 2006
According to a 2005 report of the Pension Benefit Guaranty Corporation (PBGC, the agency that administers the federal insurance program for DB plans), more than 2700 DB plans ' nearly 10% of all PBGC-insured plans ' were frozen as of 2003, and more than 165,000 DB plans were terminated between 1975 and 2004. This same period has seen a rise in popularity of defined contribution (DC) and other individual account plans (IAPs), such as 401(k) plans. This article explores the thinking that has led many employers to freeze and/or terminate their DB plans as a means of managing the risk/reward attributes of their tax-qualified deferred compensation programs, as well as some special considerations for law firm financial managers.
What Every U.S. Employer Should Know About Workplace Privacy
August 01, 2006
Through the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Congress called on the U.S. Department of Health and Human Services (HHS) to promulgate regulations that would help ensure the privacy and security of health information. The Standards for Privacy of Individually Identifiable Health Information (the Privacy Rule) and the Security Standards (the Security Rule) promulgated pursuant to HIPAA apply to 'covered entities' and limit the ability of such entities to use or disclose protected health information (PHI). The Privacy Rule defines a 'covered entity' as a health plan, health care clearinghouse, or health care provider who transmits health information in electronic form in connection with certain specified transactions. While the Privacy Rule and the Security Rule do not directly apply to employers, the requirements of these rules do apply to ERISA-covered 'group health plans' that are sponsored by many employers.
Court Watch
July 31, 2006
Highlights of the latest franchising cases from around the country.
Compliance Programs for Private Companies
July 31, 2006
We all know that a proactive Securities Exchange Commission (SEC), combined with implementation of the Sarbanes-Oxley Act of 2002 (SOX), and activation of the Public Company Auditor Oversight Board (PCAOB), has triggered intense scrutiny on corporate ethics and accountability. One by-product of this is that the public company has come to serve as a mentor of sorts to the private company in the arena of corporate compliance programs, offering certain 'best practices' that may also be useful to the privately held company, its management, and its shareholders or owners.
