Sarbanes-Oxley 'Creep'
June 29, 2004
The Sarbanes-Oxley Act (SOX) responded to well-publicized allegations of securities fraud. Its commandments about financial and internal control certifications, audit committees, auditor independence and the like expressly target publicly traded corporations. Yet much has been written about the "inevitable" spillover of SOX-type obligations onto not-for-profit organizations, especially in the health care sector. As a result, not-for-profit CEOs, compliance officers and counsel have practical questions.
AHLA Seeks Clarification on Physician Malpractice Insurance
June 28, 2004
Last month, we discussed some possible ways that hospitals, in order to maintain staffing needs, can help physicians obtain medical malpractice insurance coverage at reasonable rates. These possible solutions range from giving physicians outright payments to help cover their premiums to establishing a physician insurance program through an independent or hospital-owned insurer. It is important, however, that when hospitals and physicians consider any of these alternatives, they take into account the regulatory implications of any program they may devise.
Physician Sues Medical Association
June 28, 2004
In the latest legal battle between doctors and lawyers over medical malpractice litigation, a California internist has sued three Hillsborough County, FL, doctors and the Florida Medical Association (FMA) for initiating an FMA investigation of the internist's expert testimony in a Tampa malpractice case.
SOX Changes the Ink from Red to Black
June 28, 2004
SOX has been characterized by many as a hastily prepared, poorly written piece of legislation. Most agree some reform was necessary after the revelation of the alleged and acknowledged misconduct by and systematic failures of several corporations and their advisers. However, the sweeping, all-inclusive nature of the most significant change in securities regulation in 50 years is all but overwhelming to many public companies. While SOX was intended to restore faith in the capital markets and is supported by many, it is not without its criticisms.
Avoiding Product Liability Traps in the New Dietary Supplement Regime
June 28, 2004
A year ago, manufacturers and marketers of dietary supplements benefited when the U.S. Food and Drug Administration (FDA) implemented a new regulation allowing such companies to make unproven health claims on their labels. Under the new relaxed FDA requirements regulating the marketing and promotion of dietary supplements, manufacturers have more leeway to tout the healthfulness of products by making "qualified health claims" on dietary supplement labels, even if there is no "significant scientific agreement" over the validity of these claims. Under the former policy, supplement manufacturers that had scientific support for their claims, but lacked conclusive evidence, were prohibited from marketing their potential health benefits, thus losing out on important marketing opportunities. The new, more flexible dietary supplement regime enables companies to market their products more aggressively and increase sales.
Practice Tip: Try Technology in Trying Cases
June 28, 2004
Today, television has become the dominant medium for the dissemination of information and entertainment, and the trial lawyer who ignores this basic reality of American life does so at significant peril to his or her case. The effective trial lawyer will continue to rely on the timeless tactics of credibility, emotional appeals, and logic. Nevertheless, in order to persuade a jury effectively, the trial lawyer must deliver the case themes and facts in a way that is consistent with how jurors process information in our high-technology age.
Supreme Court Disappoints Secured Lenders
June 25, 2004
The U.S. Supreme Court's recent <i>Till</i> decision on the proper cramdown interest rate will disappoint secured lenders. <i>Till v. SCC Credit Corp.</i>, 124 S. Ct. 1951 (2004). As we show below, Till should be limited to its narrow fact pattern, but is still bad news for lenders. They now will be forced to fight an uphill battle to prove that a higher risk premium should be added to the prime rate applicable to their crammed down secured claim. In Till, the plurality accepted a risk adjustment premium in the range of 1% to 3% (Justice Thomas, concurring, could accept no premium at all). Commercial lenders will thus have to overcome Till by showing that they are entitled to a truly "market" interest rate.
Circuit Court Win Sets Up Conflict over Bankruptcy Code
June 25, 2004
A recent circuit court decision regarding the interpretation of section 365 of the Bankruptcy Code has set up a conflict between two circuits. On March 15, 2004, the Court of Appeals for the First Circuit issued an opinion regarding whether bankruptcy debtors are required to cure non-monetary defaults prior to assuming unexpired leases under section 365 of the Bankruptcy Code, 11 U.S.C. ' 365. The First Circuit found -- expressly contrary to a holding of the Ninth Circuit Court of Appeals -- that debtors are not required to cure such defaults, resulting in a split in the circuits over a very widely used section of the code.
What Constitutes a 'Security'?
June 22, 2004
The definition of what constitutes a "security" has broadened and changed dramatically over the years under both case and statutory law. Attorneys concentrating in securities law (whether by virtue of litigation or transactional work), as well as governmental and self-regulatory organizations, ranging from the Securities and Exchange Commission (SEC) to the National Association of Securities Dealers (NASD) to various exchanges, have been dealing with the increasingly complex question of what constitutes a "security." This question is often posed to resolve particular claims in specialized venues, testing the acumen of even the most sophisticated securities practitioners and industry members. This two-part article describes the transfer process and offers sample forms as examples.
