Fending Off the Trustee
November 27, 2007
Thus there are numerous options available to you as in-house counsel if you are faced with a preference action. Knowing how to act, and how quickly, might make the difference between hanging onto the funds you received prior to your clients' bankruptcy, and having to hand them all over to the trustee to be redistributed among all the creditors.
Corporate Monitors
November 27, 2007
In the wake of corporate scandals and high-profile prosecutions, many companies have avoided prosecution or have otherwise negotiated reduced sanctions in recent years by cooperating with prosecutors or regulators and entering into agreements that often include accepting a monitor. The monitor generally continues to investigate and proposes further changes where appropriate, reporting directly to the government at the company's expense.
Legal Fees in Criminal Cases
November 27, 2007
Although a corporation obviously cannot be put in prison, saber-rattling by the government concerning a possible indictment is indeed a draconian threat. In January 2007, Sen. Arlen Spector (R-PA) introduced Senate Bill 186, the 'Attorney-Client Privilege Protection Act of 2007' ('S. 186'). If enacted, S. 186 would straightforwardly 'prohibit' U.S. Attorneys from conditioning any <i>civil or criminal</i> charge decision upon, or use in deciding whether an organization is 'cooperating' with the government, 'the provision of counsel to, or contribution to the legal defense fees or expenses of, an employee of that organization.' In July 2007, Rep. Robert C. Scott (D-VA) introduced House Bill 3013 ('H.R. 3013'), a virtually identical bill (and bearing the same name) in the House. Here's why.
Quarterly State Compliance Review
November 27, 2007
This edition of the Quarterly State Compliance Review looks at some legislation of interest to corporate lawyers that went into effect during the last three months, including amendments to Nevada's corporation and unincorporated entity laws. This edition also discusses recent decisions of interest from the courts of Delaware, New York and California.
Mental Illness and the ADA
November 27, 2007
Congress enacted the Americans with Disabilities Act ('ADA') as an attempt to provide physically and mentally disabled Americans with a means to combat a long history of discrimination in nearly all areas of civic life. To achieve this goal, Congress divided the Act into five titles, the first of which focuses exclusively on employment discrimination. While the statutory language and regulations seem straightforward, the corresponding legal realities to employers have caused many to come to the realization that 'even the most conscientious employer, without clear guidance as to what the [ADA] statute and implementing regulations require in a given situation, may find itself defending a lawsuit because of business decisions made in good faith, but adversely to an allegedly disabled individual.' 42 Am. Jur. 3d <i>Proof of Facts</i> Sec. 1 (2007).
A Look At FIN 48
October 30, 2007
In an effort to increase comparability and consistency in how companies report income tax positions on financial statements, the Financial Accounting Standards Board ('FASB') issued FASB Interpretation Number 48 ('FIN 48'), Accounting for Uncertainty in Income Taxes on July 13, 2006. FIN 48 changes the way companies must account for uncertain tax positions taken on federal, state and local, and international income tax returns for financial reporting purposes.
Ten Things You Should Know About China's New Antitrust Law
October 30, 2007
On Aug. 30, 2007, China's National People's Congress adopted the Anti-Monopoly Law ('AML'), the first ever comprehensive competition law in the largest emerging market in the world. This was the culmination of 13 years of legislative effort and debate since the first draft of this law was originally conceived. What are the essentials of China's emerging antitrust legal regime? The following are the ten key things that you should know about this area.
The Roberts Court on Antitrust
October 30, 2007
By the end of its last term, the Supreme Court decided four significant antitrust cases, resulting in one of the most antitrust-focused terms in the Court's history. In rendering decisions favorable to the defendants in all four cases, the Court quickly drew the dreaded 'pro-business' label. Commentators on the left criticized the decisions as marking a hard-right turn on antitrust policy, while those on the right lauded the Court's restoration of free-market principles to competition analysis. These broad pronouncements overstate the similarities among the cases, which arose in a wide range of industries and raised quite different legal issues.
Meeting the Section 409A Deadline
October 30, 2007
With a last-minute extension by the IRS, the final regulations adopted under Section 409A of the Internal Revenue Code now impose a hard Dec. 31, 2008 deadline on making necessary amendments to deferred compensation arrangements for employees, directors, and certain independent contractors of private, not-for-profit, and public companies in order to avoid federal excise taxes at a rate of 20% (plus retroactive interest).
