"Implications of the CFPB's First Annual Report Regarding the Fair Debt Collection Practices Act," The Banking Law Journal, June 2012.
June 2012
Publications
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“Running an End-Around on Customs – Revisiting the Use of Declaratory Judgment as an Alternative to ITC proceedings,” IPLaw360, June 2012.
June 2012
Publications
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“IRS Notice 2012-40 Provides Clarification With Regard to Health Care Reform’s $2,500 Cap for Health FSA Salary Reductions,” ECFC Flex Reporter, June 2012.
June 2012
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June 1, 2012
Publications
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This advisory discusses the two most recent decisions of the Supreme Court involving federal taxes, which illustrate how a conservative approach to statutory interpretation tends to prevail, but only with great effort, and changing constituencies.
June 1, 2012
Advisories
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“The Supreme Court Decision on the Affordable Care Act - The Immediate Implications for Group Health Plans,” ECFC Flex Reporter, June 2012.
June 2012
Publications
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“Practice Tip: Spoliation and the 'Bad Faith' Requirement,” LJN’s Product Liability & Strategy, June 2012.
June 2012
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“Constitutional or Not: ACA Crates Turbulent Times for Account-based Plans,” CDHC Solutions, May/June 2012.
May/June 2012
Publications
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During the week of March 26, 2012, the Supreme Court heard an unprecedented three days of oral argument on the question of the constitutionality of the Patient Protection and Affordable Care Act, Public Law 111-148, as amended by the Health Care and Education Reconciliation Act, Public Law 111-152 (the “Affordable Care Act,” or ACA). The Court is expected to issue its decision in June.
Alston & Bird’s April 4, 2012, Health Care Advisory focused on oral argument before the Supreme Court on the primary issues presently being considered by the Supreme Court in the cases. In this advisory, we focus on some of the implications and issues that may arise as a result of the Supreme Court’s ruling and address such implications and issues arising from several potential outcomes of the cases before the Supreme Court.
May 30, 2012
Advisories
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This advisory discusses how the Fifth Circuit has joined the Ninth and Tenth Circuits in holding that simple negligence is the standard of liability for misdemeanor violations of the Clean Water Act (CWA). This lower standard of simple negligence could amount to no more than a plant manager’s switch of the wrong valve. Such a switch, if it causes a discharge of pollutants from a point source into waters of the United States, is subject to criminal prosecution—a fine of up to $25,000 per day of violation and imprisonment up to one year.
May 29, 2012
Advisories
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The Federal Energy Regulatory Commission (FERC) recently issued Order No. 1000-A, an order on rehearing and clarification of its landmark Order No. 1000, which established new requirements for transmission planning and cost allocation. Although FERC rejected all legal challenges to Order No. 1000 and left all of its primary directives in place, Order No. 1000-A clarifies a number of matters. Notably, FERC clarifies that federal rights of first refusal need not be eliminated for transmission upgrades whose costs are allocated entirely to the service territory or footprint of the constructing public utility. FERC also clarified the steps a transmission provider must take when arguing that FERC must first satisfy the burden of proof required by the Mobile-Sierra line of cases before eliminating a federal right of first refusal. This advisory provides information on other important clarifications.
May 25, 2012
Advisories
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Joint marketing arrangements between unrelated insurers can be an effective sales and financial tool for both companies. For example, Insurer A may have a stronger brand name, or broader jurisdictional authority to write business, than Insurer B. Insurer B may have a distribution force with excess capacity. Both companies can leverage their assets by having Insurer A direct write business, marketed by Insurer B, where both companies share the risk via reinsurance. Sometimes called “private labeling,” these arrangements are really just a type of joint venture, but with unique considerations relating to the insurance industry and its regulations. This advisory provides insurance company clients with a checklist of terms to consider in structuring such a joint venture.
May 22, 2012
Advisories
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This client advisory summarizes two recent developments concerning the ever-changing picture of U.S. sanctions on Iran: a recent penalty case issued by the Office of Foreign Assets Control (OFAC), which appears to break new jurisdictional grounds and the status of significant new sanctions legislation currently pending in Congress.
May 22, 2012
Advisories
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The outcome of the TOUSA appeal discussed in this advisory has been much anticipated and closely watched by the lending community, their counsel and advisors, and legal scholars. On May 15, 2012, the Eleventh Circuit Court of Appeals issued its opinion (found here), reversing the District Court for the Southern District of Florida and affirming the Bankruptcy Court for the Southern District of Florida, at least insofar as to the bankruptcy court’s factual findings, but not remedies. The appellate court held that the bankruptcy court got it right when (a) it avoided as fraudulent transfers the liens granted by certain TOUSA subsidiaries (the “Conveying Subsidiaries”) to TOUSA’s new lenders and (b) required disgorgement of the $403 million in loan proceeds paid to certain lenders (the “Transeastern Lenders”). “We hold that bankruptcy court did not clearly err when it found that the Conveying Subsidiaries did not receive reasonably equivalent value for the liens and that the bankruptcy court correctly ruled that the Transeastern Lenders were entities ‘for whose benefit’ the liens were transferred.”
May 18, 2012
Advisories
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"SB 375 May Result in State Control of Land Use," Los Angeles Daily Journal, May 16, 2012.
May 16, 2012
Publications
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The United States has maintained a longstanding policy of not taxing bank deposit interest of nonresident aliens as a way in which to encourage foreign investment in U.S. banks. Furthermore, except with respect to nonresident aliens from Canada, the United States has not required the reporting of such bank deposit interest income to the IRS. On April 19, 2012, however, the IRS reversed this policy of the non-reporting of bank deposit interest. Pursuant to new final regulations under Sec. 6049 (T.D. 9584) (the “final regulations”), deposit interest income will still not be taxed, but when paid to certain nonresident aliens, it must soon be reported to the IRS. This advisory discusses the final regulations under Treasury Regulations § 1.6049-4(b)(5)(i) and § 1.6049-8, which will require U.S. financial institutions to report certain deposit interest aggregating $10 or more paid to nonresident alien individuals commencing on or after January 1, 2013.
May 15, 2012
Advisories
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"FATCA Made Easy?" Tax Management International Journal, Vol. 41, No. 5, May 11, 2012.
May 11, 2012
Publications
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