Legal Updates and Articles

United States Sentencing Commission Issues Proposed Guidelines Related to the Sentencing of Companies Charged With Federal Crimes

Last month, the United States Sentencing Commission (“USSC”) proposed several modifications to the United States Sentencing Guidelines that will have far-reaching ramifications for any company caught up in a federal investigation.

Ninth Circuit Holds That Allegedly Excessive Underwriting Fees Cannot Be the Basis for a RESPA Section 8(b) Claim and the National Bank Act Preempts State Consumer Protection Claims

On March 8, the Ninth Circuit Court of Appeals held that the National Bank Act preempts unfair and fraudulent conduct claims under California’s unfair competition statute and that allegedly excessive underwriting fees cannot serve as the basis for claims under Section 8(b) of the Real Estate Settlement Procedures Act (“RESPA”). The Martinez v. Wells Fargo Home Mortgage, Inc. decision will make it more difficult for plaintiffs suing federally-chartered national banks to assert state law unfair competition claims based on the bank’s lending activities.

Supreme Court Holds That the Principal Place of Business, for the Purposes of Diversity of Citizenship, Refers to the “Nerve Center,” or the Place Where the Corporation’s High Level Officers Direct, Control and Coordinate the Corporation’s Activities

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Hertz Corp. v. Friend, 559 U.S. ___ (2010)
Melinda Friend and John Nhieu (hereinafter “Friend”), two citizens of California, sued Hertz Corporation in California state court for violations of the state wage and hour laws. Hertz subsequently filed a notice of removal to federal court, claiming that the plaintiffs and [...]

Forming an ECODistrict

The movement behind ECODistricts is gaining momentum. Around the country and, most notably, in the Pacific Northwest, civic leaders, sustainability experts and leadingedge property developers are exploring the concept of ECODistricts. ECODistricts take the most successful elements of sustainable practices in the environmental, social and economic fields, and combine them into a single neighborhood to achieve a new level of sustainability.

H-1B Cap Opens: Procedural Changes Could Catch Employers Off-Guard

Under immigration law, the H‑1B program allows U.S. employers to hire foreign nationals in “specialty occupation” positions for which they require a bachelor’s degree or the equivalent. Under current law, there is a cap on the number of new H‑1B petitions that will be granted during each federal fiscal year (“FY”). While current trends suggest the cap might not be hit as early this year as in some years, procedural changes related to prevailing wage requirements could catch employers off-guard and cause delays.

New Laws Affecting Oregon Employers in 2010

Oregon employers should be aware that several new labor and employment laws went into effect Jan. 1. View full article (PDF) for a summary of some of the more significant new employment laws effective with the New Year.

Estate Planning 2010

The United States has imposed an estate tax since 1916. Approximately 85 years later, Congress enacted the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”). EGTRRA included a number of changes to the income, gift, estate and generation-skipping transfer tax statutes then in effect. Many of the changes included in the 2001 legislation are effective only in 2010.

Time to Hit the Books: How to Prepare for a Technical Case

As a young lawyer who is unfamiliar with construction law, you may find yourself representing a civil engineer in a case involving faulty construction on a bridge. You are sure to encounter complex, technical questions in this case, such as whether the standard of care was met in providing a seismic analysis for the widening of a [...]

When Does a Citation Become a Misrepresentation?

The unfortunate reality for most long term care providers is that citations happen. While providers strive for citation-free surveys, the seeming subjectivity, inconsistency, and unpredictability of the regulatory oversight process make this goal more aspirational than realistic, especially for those with challenging resident populations and decreasing reimbursement rates. View full article (PDF).

Copyright 2010 American Health Lawyers Association, Washington, DC
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The Oregon Legislature Puts New Limits on Business Energy Tax Credits

Oregon’s Business Energy Tax Credit (“BETC”) is undergoing significant changes as a result of HB 3680, passed by the Oregon Legislature on February 23, 2010. The governor has indicated he will sign the bill. HB 3680 will place new financial limits on the program and give more discretion to the Director of the Oregon Department of Energy (“ODOE”) to reject BETC applications and to reduce the amount of BETCs delivered to projects.

Broadcom: Lessons from the Frenzy Over Stock Options Backdating

Last month, a federal judge in Santa Ana, Calif., dismissed with prejudice federal criminal fraud charges against several Broadcom Corp. executives and essentially terminated one of the last of the stock options backdating cases brought by federal prosecutors.  As the dust settles on this case, there are lessons to be drawn [...]

Avoid Wage and Hour Violations

Employers may face more scrutiny over pay practices in 2010, thanks to a new report claiming that wage-and-hour violations are running rampant in the workplace.  Expressing concern, Secretary of Labor Hilda Solis has promised to step up enforcement and the U.S. Department of Labor (DOL) announced it would hire 250 additional investigators to snare violators. [...]

How to be a Good Sport – Seattle Athletes May Move On, But Their Spirit of Giving Lingers in Their Former Home

It is sometimes difficult to avoid thinking about all the negative things that have recently happened to sports in Seattle.  The Sonics left.  Our professional and collegiate teams have seen better years.  Professional and amateur sports personnel keep speaking out of turn on Twitter and Facebook.  NFL players are reprimanded for advertising brands after they [...]

Internal Investigations Prove Valuable But Hold Some Traps

The internal investigation has long been a hallmark of the best practices of any company that is confronted with allegations of misconduct.

Unfortunately, it appears that many more businesses will face the need for internal investigations in the future. The economic meltdown, the resulting push for more regulation by Congress and the recent legislative changes to the federal whistleblower statute make it inevitable that more managers and boardrooms will receive reports of misconduct.

Washington State Considering New Aircraft Tax

Your aircraft may soon be subject to a new annual Washington State tax based on the aircraft’s fair market value. This new tax is part of House Bill 3176, which is scheduled for a public hearing before the House Finance Committee this Saturday, February 13, at 9 a.m. If passed, this bill will result in the imposition of an annual excise tax on the privilege of using an aircraft within Washington State, equal to one half of one percent of the aircraft’s taxable value, as determined under a depreciation schedule to be published annually by Washington State Department of Transportation (“WSDOT”). Accordingly, the owner of a Washington registered aircraft with a taxable value of $20 million, would owe $100,000 per year. Under the bill, WSDOT would be responsible for collecting and administering the tax.

City of Seattle Adopts Energy Efficiency Reporting Requirements That Exceed State Law

On February 1, 2010, Seattle Mayor Mike McGinn signed the Building Energy Rating and Disclosure Ordinance, which the City Council had unanimously passed in January. Effective March 3, 2010, owners of nonresidential commercial buildings and multi-family buildings of four or more units in Seattle will have to benchmark, rate and disclose the energy efficiency of their buildings using the Energy Star system.

New Guidance Issued by Securities and Exchange Commission for Climate Change Disclosures by Public Companies

On February 2, 2010, the Securities and Exchange Commission (“SEC”) published an interpretive release to provide guidance to public companies on the SEC’s existing disclosure requirements relating to climate change. Those requirements apply to registration statements and periodic reports filed under the Securities Act of 1933 and the Securities Exchange Act of 1934.

This is the first time the Commission has addressed climate change disclosures. The interpretive release does not create new legal requirements or modify existing requirements. Instead, the guidance is intended to provide clarity about the requisite disclosures for public companies regarding the impacts of climate change on their businesses. The guidance is meant to foster consistency in the treatment public companies give to their disclosures related to climate change.

Multifaceted Incentive Programs Move Oregon to Front of Pack

With all the attention that Oregon’s Business Energy Tax Credit, or BETC, has been getting of late, it might seem as if it’s the only game in town that’s providing incentives for renewable energy and sustainability projects in the state. But BETC is much broader than the points of concern raised by various critics, and there are a number of other non-BETC programs available that continue to make Oregon a leader in providing businesses and residents with significant incentives for sustainability projects.

Oregon is at a Clean-Tech Crossroads

Over the past several years, Oregon has taken a leadership position in renewable energy, energy efficiency and clean-technology development. Largely due to progressive energy policy and strategic incentives, Oregon has become a national focal point for solar energy manufacturing, wind energy production, and most recently, electric vehicle technology and infrastructure.

Ninth Circuit Holds that Rule B Attachments Must Be Vacated When the Plaintiff Has Failed to Show a Valid Prima Facie Admiralty Claim

Under Rule B of the Supplemental Admiralty Rules, a plaintiff can only attach a defendant’s property if four conditions are met: (1) plaintiff has a valid prima facie admiralty claim against the defendant; (2) defendant cannot be found within the district; (3) property of the defendant can be found within the district; and (4) there is no statutory or maritime law bar to the attachment. The Supplemental Rules permit the defendant to object to the attachment through a Rule E hearing, at which the defendant argues that one of the four conditions has not been met. The burden is on the plaintiff to demonstrate that the attachment should continue. At issue in this case was whether Equatorial Marine Fuel Management Services (“Equatorial”) had carried its burden to show a valid prima facie admiralty claim against MISC Berhad (“MISC”).