In The Headlines

Taxation Partner Kevin Packman was quoted in an Automated Trader article titled, "IRS Sees Withdrawing Case Against UBS This Fall."

The article reports that United States tax officials said they expect to be able to withdraw legal action against UBS after Swiss officials hand over the remainder of 4,450 sets of confidential client data on wealthy Americans with hidden offshore accounts at the Swiss bank. As soon as the data handover is completed, the IRS will decide which of those account holders who didn't come forward to pursue and whether to pursue criminal indictments. "We're going to see a lot of activity," said Mr. Packman. Individuals that turn themselves in at this late hour shouldn't count on leniency, but they would still be better off "than waiting for the government to find you," he said.

To read the full article, please click here.

Investment Management Partner Scott MacLeod was quoted in a Hedge Fund Law Report article titled, "How Will the SEC’s New Pay to Play Rule Impact Mergers and Acquisitions of Hedge Fund Management Companies?"

The article lists options available to prevent or remedy violations of the SEC's recently approved pay to play rule (Rule) in connection with acquisitions of hedge fund management businesses. The ideal approach, of course, is to bring an awareness of pay to play issues to any potential hedge fund manager acquisition, and to perform due diligence and structure and draft the acquisition agreement accordingly. However, even the best pay to play due diligence, like any due diligence, is imperfect. Accordingly, Mr. MacLeod suggested a strategy of indemnification that would, in effect, reimburse the acquirer for revenue lost based on Rule violations. “A huge part of what you buy in an investment management acquisition is assets under management," explained Mr. MacLeod. "So, anything that causes any leakage of clients can be a big problem. What you could see as a result is more finely tuned earnouts or indemnification or escrow baskets, and payback for deals if you have big government clients from whom you can’t collect fees for a significant period or that you mandatorily redeem as a result of the conflict.”

To read the full article, please click here.

Labor, Employment and Benefits Partner Kelly-Ann Cartwright was quoted in a Business Insurance article titled, "Firms still adapting to disability laws."

The article reports that 20 years after the Americans with Disabilities Act (ADA) was signed into law, changes brought about by the ADA Amendments Act of 2008 have raised fresh questions. The law, which guarantees equal opportunity for disabled individuals under certain circumstances, has had a particularly significant impact in the workplace. Ms. Cartwright explains that the statute is difficult for some employers to understand. "The statute was written, and case law developed around the statute, and then the statute was recently changed again," she said. "So employers are now having to deal with those changes” and how the courts may interpret them.

To read the full article, please click here.

Taxation Partner Kevin Packman was quoted in a Daily Business Review article titled, "HSBC trying to avoid becoming next UBS."

The article reports that the newest target of the Justice Department and Internal Revenue Service appears to be HSBC, the London-based retain bank prominent in Asia. Since June of this year, at least 15 HSBC clients have been investigated for tax evasion by United States authorities. However, many tax attorneys believe that several of those targeted are just confused about reporting income in two countries. Mr. Packman noted that the Justice Department is lumping in those who simply did not know the international reporting rules on income tax with the true tax scofflaws. “I look at this stuff as low-hanging fruit. The size of the account should not matter. Whether it’s $1 million or $15 million, the focus should be on intent and willfulness,” he said. “I have people who failed to report accounts with $100,000, and they are being treated the same way as those who intentionally evaded tax.”

To read the full article, please click here.

Estate Planning and Administration Partner Mil Hatcher was quoted in a Jacksonville Business Journal article titled, "Put the 'success' in succession planning."

The article discusses the importance of succession planning for business owners. Mr. Hatcher points out that whether business owners like it or not, all businesses will have to make some sort of transition eventually. "There is going to be a succession, or an exit," he said. "The question is whether it’s going to be orderly or chaotic." He warns that putting a plan together can be not only extremely sensitive, but also complex. Plans can vary from one business industry to the next, one business owner to the next and one family to the next. “There are as many variables as there are clients. You can’t use a cookie cutter approach to say this is the universal approach," he said. Ultimately, succession plans should include those who will manage the business and family members who are not part of the business but who will receive some sort of financial inheritance from the business and estate taxes.

To read the full article, please click here.

HIPAA Partner Shannon Hartsfield Salimone was quoted in a BNA Health IT Law & Industry Report article titled, "Expansion of Rules Should Not Burden Associates with Good Practices, Expert Says."

The article reports that subcontractors and service providers involved in the exchange of personal health information should not be overburdened by the recent expansion of HIPAA privacy and security rules if they already have good practices in place. Ms. Salimone noted that business associates of health care entities already covered by HIPAA will need to comply with the security rules, need written policies and procedures, and will need to perform other tasks covered entities have been doing for many years. “We are going to be seeing a renewed focus on business associates and a need for business associates to implement HIPAA-like compliance programs," she said.

For up-to-date content and resources regarding the new Health Reform Bill, please visit Holland & Knight's Healthcare Reform Center.

Foreign Corrupt Practices Act Team Leader Don Zarin was quoted in a National Law Journal article titled, "Financial reform includes new whistleblower program."

The soon-to-be-signed financial reform package creates a new whistleblower program with potentially huge cash rewards for individuals who provide information about securities law violations to the U.S. Securities and Exchange Commission. Some corporate defense lawyers are calling it a "bounty" reward program because it covers violations of the Foreign Corrupt Practices Act, which lately has produced hundreds of millions of dollars in corporate penalties and settlements. "That's really significant," said Mr. Zarin. "There's been a dramatic increase in penalties by the SEC in the foreign corrupt practices area. It basically requires disgorgement of profits and that has resulted in some huge penalties – some over $300 million." Mr. Zarin estimates that more than half of SEC enforcement actions in this area are over the $1 million threshold. "This will really raise the bar on companies," he said.

To read the full article, please click here.

For additional information on the new whistleblower program, please click here.

HIPAA Partner Shannon Hartsfield Salimone was quoted in a POLITICO Pulse news brief titled, "HIPAA Expansion Regs Released."

The new HIPAA regulations, expanding requirements to subcontractors and business associates of health providers, could entail stiff fines for violations. The regulations cover billing companies and accounting firms in the same way that doctors and hospitals are currently covered. Additionally, the proposed regulations allow covered entities to contact patients without their prior approval as long as they include it in their notice of privacy practices. Ms. Salimone noted that the provision is likely to get a lot of comments, particularly on how big an exception the companies should get.

Maritime Partner Vincent Foley was cited in a New York Times article titled, "Calls to Update Maritime Laws."

Although lawmakers in Washington are fixed on the legal and financial fallout of the oil spill in the Gulf of Mexico on BP and firms like Transocean, the operator of the Deepwater Horizon rig that sank in April, a flurry of legislation in Congress could also have sweeping consequences for other industries that work at sea. For example, there are bills in both the Senate and the House that would repeal a law Transocean has cited to cap some of its liabilities. The Limitation of Liability Act limits the total liability of a vessel's owner, apart from pollution-related claims, to the vessel's value, including any money owed to its owner, after an accident like a sinking. Mr. Foley said that repealing the law would have consequences far beyond Transocean because the statute was routinely used by operators of vessels like cargo ships, freighters, barges and tug boats.

To read the full article, please click here.

Estate Planning and Administration Partner David Sloan was quoted in a SmartMoney article titled, "Negotiating Estate Tax Gridlock."

With its attention focused intensely on health care and financial reform, Congress failed last year to renew the estate tax, which taxed multimillion-dollar estates and expired at the end of 2009. Although a year with no estate tax might sound like a potential windfall, the situation can present pitfalls. From marital bequests to generation-skipping transfer taxes, the effects are far-reaching. If Congress does nothing, the estate tax will revert back to what it was before the law was enacted in 2001: a $1 million exemption and a progressive tax rate that tops out at 55%. "That would expose a broader swath of the population to estate taxes," noted Mr. Sloan. Add up the equity in your house, your retirement portfolio, life insurance policy, and it's not hard to reach $1 million. He stresses the importance of careful estate planning. "What we're doing for our clients is saying: Here's your pile of assets. Ignoring the estate taxes; how do you want to divide it up upon your death?"

To read the full article, please click here.

Financial Services Practice Group Leader Joe Sirven was quoted in a Daily Business Review article titled, "Will South Florida branches help or hurt Spanish banks?"

Spain's economy is laboring under crippling deficits and a 20 percent unemployment rate, a crush of bad real estate loans and a central bank-ordered consolidation of the country's savings banks, or "cajas," that it insists is a preemptive restructuring rather than a rescue. All of this has observers closely watching for any effects on Spanish banks' operations in South Florida and their much-touted expansion plans.

The caja with the most visible presence in the South Florida market is Caja Madrid, which owns Miami-based City National Bank of Florida. In June, the caja confirmed that it has begun merging its operations with fellow savings bank Bancaja to form what would be Spain's largest caja. Miami operations are very minor players within the enormity of Spanish banks, but effects are sure to be felt nonetheless. "Once the mergers are finalized, the cajas are going to have to decide what to do with their Miami operations," said Mr. Sirven. "They're going to have to figure out how to combine those operations."

Real Estate Partner Richard Perez was quoted in an Orlando Business Journal article titled, "CDDs at a crossroads."

Central Florida developers have found it difficult to get financing for projects lately – but they may be in for an even bigger shock as the economy improves. This article reports that when large-scale residential development returns to the region – which experts predict is at least two to three years away – the low-cost financing model developers enjoyed for the past 30 years may not. That's because the dozens of defaults on bonds issued by community development districts (CDDs) in Florida have scared away investors. In the coming years, developers could be faced with the choice of paying a higher interest rate to mitigate an investors' perceived risk on a bond issue, spending some of their own money to start work on the project or demonstrating the viability of a project through having some orders for homes. Mr. Perez, who helped CDDs issue bonds, explained that investors' appetite for bonds issued by CDDs will depend on what they recoup from the latest round of issues involving failed communities. "The cost of development will go up," he said.

To read the full article, please click here.

Public Policy & Regulation Practice Group Leader Rich Gold and Healthcare & Life Sciences Partner Michael Gaba were quoted in a National Law Journal article titled, "Health reform is wonder drug for D.C. firms."

The article discusses the impact of healthcare reform on law firms with Washington regulatory practices and healthcare specialties. The Clean Air Act "threw off work for most of the '90s, and this is bigger than that," said Mr. Gold. Clients want help navigating and influencing rulemaking going on at federal agencies, specifically the U.S. Department of Health and Human Services. They also want to make sure that prior lobbying isn't undone by a regulatory decision. For example, explained Mr. Gaba, the National Hemophilia Foundation successfully lobbied against allowing lifetime caps on benefits. Now, the group is examining whether loopholes could be created during rulemaking and wants assistance in monitoring developments. "A lot of mischief can happen in the regulatory process," he said.

GSA Leasing & Federal Real Estate Services Team Chair Robert MacKichan and Chicago Real Estate Practice Group Leader Peter Friedman were quoted in a Chicago Daily Law Bulletin article titled, "Federal government becomes preferred office tenant."

The article reports that as private-sector office leasing dwindles during a recession, private property and office building owners depend instead on government tenants. "The government, in a bad economy, is the only one with money," said Mr. Friedman. "They regularly pay and they keep paying, which is the lifeblood of the building owner in a bad economy." He explained that GSA and other government leases are counter-cyclical, since in a downturn, the federal government pumps billions of dollars into new departments and programs that need office space for their personnel. Mr. MacKichan noted there is not only a greater demand for space, but also a greater interest in competing for federal leases. "What might have been in the last couple of years competition with four competitors now has a dozen or more," he said. "This has to be the busiest year that I've had in my practice." To read the full article, please visit the link below.

READ: Federal government becomes preferred office tenant

Maritime Partner Vincent Foley was quoted in a Journal of Commerce Online article titled, "Deepwater Horizon Could Affect Ships' Insurance Coverage."

Ocean vessel operators are watching talks in Congress over potential changes in oil pollution liability limits for the impact legislation responding to the Deepwater Horizon disaster could have on carrier insurance coverage. Under the Oil Pollution Act (OPA), liability of responsible parties is limited to $75 billion plus removal costs. One proposal being floated on Capital Hill would remove the cap, but doing so would make it difficult for underwriters to assess risk.

Last month, Mr. Foley told the Senate Environment and Public Works Committee an abrupt change in OPA limits could have unintended consequences for U.S. oil imports. "A dramatic increase in the OPA limits could result in this insurance coverage not being available through protection and indemnity clubs, and therefore the necessary pollution insurance would not be available at all to small, mid size, and even most large operators," he said.

National Healthcare & Life Sciences Team Chair Maria Currier was quoted in a South Florida Business Journal article titled, "Two medical groups poised to cash in on health care reform law."

The article discusses the Patient-Centered Medical Home (PCMH) approach to comprehensive primary care. Touted under federal health care reform, the model is designed to improve quality and reduce costs by allowing primary care physicians to manage a patient's care in coordination with other doctors and caregivers. Instead of getting paid for every office visit and test, PCMH physicians are given a monthly bundled payment for each patient in their care.

Such coordination requires electronic record-keeping, a cost-prohibitive option for many primary care physicians. Thus, while health insurance companies are seeing positive clinical and financial outcomes from PCMH facilities, they are hesitant to suggest the model to patients because there aren't enough qualified clinics. According to Ms. Currier, the wider adoption of health care information technology should make PCMH a more attractive model. "It's difficult to navigate the health care system because all settings are operated independently," she explained. "We're looking to coordinate care, and someone should get paid for doing that."

To read the full article, please click here.

For up-to-date content and resources regarding the new Health Reform Bill, please visit Holland & Knight's Healthcare Reform Center.

Healthcare & Life Sciences Partner Michael Werner was mentioned in an Inside Health Policy article titled, "FDA, NIH Weigh Calls For Focus On Biomarkers, Clinical Trial Design."

The article reports that FDA and the National Institutes of Health (NIH) will hold internal talks on proposals they received to accelerate the translation of biomedical research discoveries into new medical therapies, with stakeholders calling for a focus on biomarker qualification, adaptable clinical trial design and challenges surrounding co-development of drugs and diagnostics. The two agencies will also likely discuss ways to continue engaging stakeholders as they move forward on a collaborative effort they launched earlier this year to improve regulatory science. At a recent public meeting, Mr. Werner, a representative of the Alliance for Regenerative Medicine, recommended the initiative be used to promote research and commercial development of regenerative medicine.

Healthcare & Life Sciences Partners Michael Gaba, Michael Werner and Jennifer Short were featured in a BNA Medical Devices Law & Industry Report article summarizing Holland & Knight's May 26 webinar titled, "Health Care Reform: The Impact on Life Sciences Companies."

The online seminar explained how the new health reform laws will affect biopharmaceutical and medical device companies by assessing fees and taxes, providing tax credits for therapeutic discoveries, and requiring comparative clinical effectiveness research (CCER) that will be used to make spending decisions. "The media has emphasized the insurance changes, but there's a lot else in the new laws that affects life sciences companies," said Mr. Gaba. "And the fun is just beginning, especially because the laws give the secretary of health and human services substantial discretion in the implementation."

For up-to-date content and resources regarding the new Health Reform Bill, please visit Holland & Knight's Healthcare Reform Center.

E-commerce Partner Ed Pisacreta was quoted in an e-Commerce Law & Strategy article titled, "e-Tailing Keeps On Sailing."

The article reports that e-Commerce sales appear to be continuing their slow upswing, according to statistics from the United States Census Bureau. "It looks like these statistics show a return to the growth pattern that existed prior to the downturn in the second half of 2008," said Mr. Pisacreta. "For e-commerce counsel, if this indeed indicates a rebound in e-commerce activity, it could point to an increase in technology investment as companies become comfortable with spending money to update their e-commerce infrastructure, and thus an increase in the need for legal assistance in that area, as well as in related areas, such as privacy, social media and regulatory issues."

Government Contracts Partner Joseph Hornyak was quoted in a Government Executive article titled, "Zoned Out."

All small businesses are not created equal, at least according to one U.S. Court of Federal Claims judge. The judge's recent ruling invoked a statute that gives companies with Historically Underutilized Business Zone (HUBZone) status priority over others eligible for set-aside contracts, including service-disabled veterans and minorities. The ruling poses a challenge for contracting officers and federal small business advocates, who have long been conditioned to provide equal opportunities for all firms in the small business programs.

Chief Judge Emily Hewitt said agencies must consider whether HUBZone companies can compete for a contract before awarding it under another small business program or on a sole-source basis. And the fine distinction between the words "shall" and "may" made all the difference in this case. The law that governs the 8(a) program for minority-owned small businesses and the service-disabled veteran-owned business program states, "a contracting officer may award contracts on the basis of competition restricted to small business concerns owned and controlled by service-disabled veterans." However, the HUBZone law says, in no uncertain terms, a contract opportunity "shall" be awarded on the basis of competition restricted to qualified HUBZone small business concerns.

In the wake of the federal claims court decision, there is extreme confusion over how contracting officers should move forward. According to Mr. Hornyak, the bottom line is Congress needs to clarify the laws. "When it passed the HUBZone statute, did Congress really want that program to have precedence over the service-disabled veteran or 8(a) programs, or did Congress not fully contemplate the effect of the language it put into the statute?" he said.

To read the full article, please click here.

National Retail Properties Team Co-Chair Tara Scanlon was quoted in a Retail Traffic article titled, "ICSC Attendees Report Increased Leasing Activity."

The article reports that many industry experts at the International Council of Shopping Centers RECon 2010 were confident that the retail real estate sector is on the mend, even if it is still facing some economic headwinds. They cautioned, however, that the industry has not returned to the boom years. Expanding retailers know they are a valuable commodity at a time when vacancy rates at retail centers remain high. As a result, retailers are negotiating for shorter lease terms with multiple extension options. In addition, some are asking for kick-out and exclusivity clauses and are able to get them when they know they have a lot of leverage. But retailers are also eager to get back to opening new stores again after a prolonged lull. As a result, they are willing to work with landlords and are often arriving at fair deals, according to Ms. Scanlon. "Tenant and landlord relations have gotten better," she said. "Landlords have to make the deals work and [they have] been very collaborative."

To read the full article, click here.

Real Estate Partner La Fonte Nesbitt was quoted in a GlobeSt article titled, "Fannie Mae Posts $13B Loss."

The article discusses Fannie Mae's reported $13.1 billion loss in Q1. The loss, necessitating a request for $8.4 billion in additional funds from the federal government, is widely expected to lend credence to calls that the GSEs be spun off from the government to exist on their own. Mr. Nesbitt, however, observes an upside to Fannie's dismal earnings. "Obviously everyone connected with housing finance—single family and multifamily—and the taxpayers generally, are waiting for Fannie and Freddie to return to profitability or at least break-even. The somewhat promising news is that Fannie's loss for the first quarter of 2010 was less than half its loss in the first quarter of 2009." Mr. Nesbitt adds that he doesn't foresee any immediate impact on Fannie Mae's multifamily lending activities. "[The GSE losses] are driven by their single family portfolios," he said.

To read the full article, please click here.

ERISA/Employee Benefits and Executive Compensation Partner Greg Bailey was quoted in a Washington Business Journal article titled, "CEO compensation down in 2009."

The article reports that, despite the uptick in the banking and finance sector last year, many CEOs in Washington, D.C., and nationwide experienced pay cuts in 2009. Mr. Bailey, who specializes in executive compensation, provides explanation. At public companies, executive pay is determined by compensation committees on the companies' boards of directors. This determination process has become more transparent since the Securities and Exchange Commission made sweeping changes to compensation disclosure regulations in 2006. "As a result [of these changes], compensation is more often tied to performance because shareholders, particularly institutional ones, want performance-based pay and may base their re-election recommendations for compensation committee members on how well those directors tied pay to performance," said Mr. Bailey.

To read the full article, please click here.

Healthcare & Life Sciences and Non Profit & Tax Exempt Organizations Partner Kathleen Nilles was quoted in a Tax Notes Today article titled, "Guidance Needed on New Charitable Hospital Provisions, Treasury Official Says."

The article reports that Helen Morrison, deputy benefits counsel in the Treasury's Office of Tax Policy, stated on April 28 that guidance is needed "sooner rather than later" on charity hospital requirements imposed by the Patient Protection and Affordable Care Act. The new law requires tax-exempt hospitals to perform regular assessments of community health needs, develop financial assistance policies, limit some charges for charity care and reform collection processes.

Ms. Nilles notes that guidance is particularly needed on the community needs assessment. The law stipulates that exempt hospitals may base the assessment on current information collected by a public health agency or nonprofit organization, or that two or more related or unrelated hospitals may conduct an assessment jointly. The law does not, however, offer any additional specifics on what is to be included or how the assessment is to be conducted, nor does it specify how to make the study widely available to the public, she said.

Healthcare & Life Sciences and Non Profit & Tax Exempt Organizations Partner Kathleen Nilles was quoted in a BNA Daily Tax Report article titled, "Official Says IRS Imputed Income Guidance Intended to Ease Coverage of Adult Children."

The article discusses President Barack Obama's health care reform legislation, with particular attention to the Patient Protection and Affordable Care Act. Ms. Nilles explains the immediate impact the Act will have on tax-exempt hospitals. "There is very little time to prepare our clients for the effective date if they are on a July to July fiscal year," she said. Additionally, she notes that three new requirements will increase the flow of data from tax-exempt hospitals to the IRS and from the IRS and the Treasury to Congress, including one under which the IRS will be required to review every exempt hospital's community benefit activities from Schedule H at least once every three years.

National Healthcare & Life Sciences Team Chair Maria Currier was featured in a Florida Trend article titled, "We Do Need Change."

The article focuses on Ms. Currier's unique perspective as a corporate and healthcare attorney who is also a former nurse.

Ms. Currier sees a major change coming in the "fee-for-service" system and predicts that bundled payments, in which a single entity receives payment for a patient's care and distributes it among the various providers involved in treatment, will become the new model. Bundled payment models have led to less paperwork, lower costs, better care coordination and fewer hospital readmissions. "The most important part of this whole puzzle now is we've got to control the cost. If we don't, this is going to be a huge problem for this country," she said.

She also predicts an increase in consolidation, acquisitions and contractual partnerships as companies adapt to the new healthcare climate. In response, the government will have to amend certain rules to allow providers to prosper.

Overall, Ms. Currier predicts good things for the U.S. healthcare industry. "I think it's an exciting time. We're going to see a lot of new business models, opportunities. This is America. We're going to find the solution and there's going to be a better system than we've got today."

Litigation Partner James Wing was featured in a Risk & Insurance article titled, "Imagining the Unimaginable Risks of Being a Director or Officer."

Directors and officers often get thrown under the proverbial bus when regulators come investigating wrongdoing at their companies. That's when D&O insurance comes to their rescue, right? Perhaps wrong. In this article, Mr. Wing sheds light on a gap in coverage provided by D&O policies and indemnity agreements that are supposed to protect officers, directors and in-house counsel in the event of an internal investigation relating to potential white collar crimes.

Most officers assume that the companies they serve or their D&O insurance carrier will pay their legal costs if they become embroiled in an investigation that has criminal overtones. They also assume that they will not have to relinquish critical legal protections, such as their right to remain silent under the Fifth Amendment, to avail themselves of this protection. Most likely, their assumptions are wrong.

"Directors and officers are amazed to find that the assertion of their Fifth Amendment rights may cause them to lose their job and health insurance," said Mr. Wing. "A director and officer will soon learn that his assertion of these critical rights may also defeat his right to get his legal costs paid."

To remedy this issue, Mr. Wing encourages companies to strengthen their indemnity agreements. He suggests hiring "specialized counsel who [have] seen these agreements 'stress-tested'…in the courts and in negotiations.

Taxation and International Private Client Group Partner Kevin Packman was quoted in a Daily Business Review article titled, "Will Law Have Chilling Effect on Foreign Investments?"

The article discusses the Foreign Account Tax Compliance Act of 2009, a new law designed to stop tax evasion and recover revenues being hidden overseas. The Act is causing both confusion and concern among foreign bankers, hedge fund managers, private equity groups, tax attorneys and wealth advisers around the world who fear that it could cause foreign financial institutions to avoid investments in U.S. securities, even before it goes into effect in 2013.

The Act requires a U.S. person or entity making a payment to a foreign financial institution to withhold and remit 30 percent of the payment to the Internal Revenue Service. Additionally, it compels foreign entities to withhold 30 percent of the proceeds of the sale of U.S. securities. The foreign financial institutions that engage in these transactions can avoid this withholding only by agreeing to work with the Internal Revenue Service to identify its U.S. account holders. These institutions will be exposed to IRS tax penalties and may decide the increased compliance costs are not worth the trouble.

"The reality is a lot of this needs to be fleshed out and clarified," said Mr. Packman. "Banks for years have been dealing with 'know your customer' rules…Private equity funds have never had to deal with that. So that's going to be a big deal."

Maritime Practice Group Leader James Hohenstein was quoted in a TradeWinds article titled, "Pirate Skiff vs. U.S. Navy?"

The article reports an alleged April 1 pirate assault on the U.S.S. Nicholas and discusses broadly the issue of attacks on merchant vessels transiting the Gulf of Arden and parts of the Indian Ocean. Despite increased naval presence, incidents of piracy continue in the region. In response, security companies around the world are offering solutions to piracy problems, from armed guards and attack dogs to hull-mounted fog machines that spew toxic gas. "The situation is no different than 300 years ago when the British Navy went after pirates, you have to meet force with force," said Mr. Hohenstein, a former U.S. Navy Captain. "It's the simplest way to handle it."

Litigation Partner Daniel Small was quoted in a Boston Globe article titled, "District attorney faces unique challenges in prosecuting teens."

The article discusses the unusual stand taken by a Massachusetts district attorney seeking criminal charges against nine students whose bullying allegedly led to the suicide of a teen girl. With no statute criminalizing school bullying, Northwestern District Attorney Elizabeth Scheibel must rely on a series of laws rarely used in such cases. Although Ms. Scheibel appears to have enough probable cause to charge the teens, some lawyers question whether legislators, not prosecutors, should determine if the kind of behavior alleged by authorities is criminal. "We're not talking about whether these kids should be punished in some normal fashion or be thrown out of school. We're talking about whether they should have criminal records or possibly go to jail," said Mr. Small, a former federal prosecutor. "The criminal law is a sledgehammer, not a scalpel, and you're dealing with very tough social issues with a very blunt instrument."

To read the full article, please click here.

D & O and Management Liability Insurance Partner Thomas Bentz Jr. and Senior Counsel Shannon Graving had their book "A Buyer's Guide to Obtaining Comprehensive D&O Insurance Coverage," highlighted in the spring 2010 issue of Directors & Boards.

In its review of Mr. Bentz and Ms. Graving's book, the magazine encouraged its subscribers to "read before buying a D&O insurance policy." The book, published in 2009, provides a basic understanding of the complexities of directors and officers (D&O) insurance and offers tips to help insureds obtain the strongest possible protection.

The article adds that D&O policies are among the most volatile and contain vast numbers of conditions and detailed definitions that can lead to millions of dollars in losses when not interpreted correctly.

For more information about this publication, click here.

Chicago Real Estate Practice Group Leader Peter Friedman was quoted in a Norridge Harwood Heights News article titled, "Point-of-sale and the housing market."

The article discusses the stringent requirements imposed by point-of-sale real estate inspections. Conducted by municipalities across the country, point-of-sale inspections can become deal breakers when obligatory repair costs overwhelm sellers. However, despite their potential impacts on the housing market, Mr. Friedman, who represents many state and local government agencies, believes that point-of-sale inspections are a good way to ensure compliance. "They are simply a means to enforce regulations that are already in place," he said. In his view, inspections at the point of sale make regulation convenient for municipalities that do not have the workforce needed to inspect every home. To read the full article, please visit the link below.

READ: Point-of-sale and the housing market

Healthcare & Life Sciences Partner Michael Werner was quoted in the article "White House support to limit pay for delay makes inclusion in final healthcare bill more likely," published on February 25 in Pharmawire.

The article discusses the White House's support for limiting the practice of reverse payment deals between brand and generic pharmaceutical companies. These agreements, also referred to as pay-for-delay settlements, occur when a pharmaceutical company accused of patent infringement pays the patentee to dismiss its lawsuit. These transactions have come under criticism by some groups, including the Federal Trade Commission, who claim they violate antitrust laws and are a form of horizontal market allocation.

Mr. Werner believes that support from President Obama greatly increases the chances that language will be included in a healthcare reform package prohibiting these deals. Such language was introduced in the U.S. Senate last fall and indicated that to complete a pay-for-delay settlement, companies must provide clear and convincing evidence that the pro-competitive benefits of the agreement outweigh the anti-competitive effects of the agreement.

Non-profit and Tax Exempt Organizations Partner Richard Sills was quoted in the article "State of Arizona Takes Donor's Gift From Parks" published in the February issue of The Non-Profit Times.

The article discusses the state of Arizona's seizure of nearly half of the state's Parks Donation Fund in an effort to help mend a $1.5 billion budget gap. The Arizona legislature approved the acquisition of $213,000 of the fund's approximately $500,000, which includes donations from drop boxes located in state parks, bequests and other private contributions.

The move has drawn controversy, with some contending the state went beyond its rights to seize charitable funds donated with the sole intent of being used for Arizona's parks. However, others argue that it is within the Arizona government's scope to take the gifts as long as they were open-ended and not set aside for specific purposes such as for a particular trail or building.

Mr. Sills argues that whether you agree with the state's move or not, it could have a harmful impact on nonprofit organizations and may cause potential donors to reconsider making contributions. "It causes more expense as people try to find out more about it and charities have to explain it," he said. "In the long run, the confusion this causes has got to be a negative factor."

Taxation Partner Kevin Packman was featured in the article "IRS to begin audit sweep on employment taxes" in the South Florida Sun-Sentinel on February 11, 2010.

The article discusses a major IRS audit of thousands of businesses set to begin in mid-February. The audit will focus on employment-related taxes in an attempt to close a $20 billion annual gap in revenue from underreporting and non-payment. The undertaking will cover 6,000 randomly selected businesses over the course of three years with those found in violation potentially facing additional taxes, penalties and interest.

Mr. Packman indicated that this was the first employment-focused audit by the IRS since 1984. The agency is expected to comb through employee classification changes and take a close look at business owner compensation to ensure they are in compliance with government regulations.

"They're running every expense available through the company: vacations, cell phones, whatever they use in their daily lives," said Mr. Packman. "It comes down to reasonable compensation. A family vacation has nothing to do with business."

Public Companies and Securities Partners Rodney Bell and Tammy Knight and associate Danielle Price were featured in the Daily Business Review article "Attorneys work three transactions at once in refinancing deal" published on February 3, 2010.

The article covered the attorneys' role in a complex multimillion dollar refinancing deal by Altra Holdings, a designer, producer and marketer of mechanical power transmission products. Mr. Bell, Ms. Knight and Ms. Price developed and implemented the refinancing strategy for Altra which included establishing a $50 million line of credit with JPMorgan Chase, purchasing $205.3 million in secured notes due in 2011 at 9 percent and issuing $210 million in new secured notes to large institutional investors such as mutual funds and pension funds at 8.125 percent and due in 2016.

Mr. Bell indicated that the three-pronged deal allowed Altra to have a longer term facility and a longer rate on its notes and gave them a clearer financial picture by locking in a capital structure for the next couple of years.

Health Law & Life Sciences Partners Daniel Small and Chris Myers were quoted in the article "Rooting Out Fraud" published in the February issue of Provider Magazine.

The article focuses on how nursing facilities can prevent being the subject of federal government investigations into fraud, waste and abuse. In the piece, both Mr. Small and Mr. Myers support corporate compliance programs (CCP) as a primary tool for nursing facilities and say they can be valuable protection against fraud accusations.

When creating a CCP, Mr. Myers recommended that nursing facilities review Office of Inspector General (OIG) documents that clearly identify risk areas which should be covered in the program. He also noted that nursing facilities should carefully review their policies and make certain their programs comply with various agencies including Medicare, Medicaid and private insurance organizations.

Mr. Small indicated research has also found that nursing facilities with strong compliance programs are better run, have reduced capital costs and have less expensive liability insurance rates. Although some facilities have resisted CCPs, Mr. Small assured that "it's one of the best investments a facility can make." To read the full article, please visit the link below.

READ: Rooting Out Fraud

Public Companies and Securities Partner Frode Jensen was quoted in the article "Assessing Board of Director Vulnerability, Protecting Against Activist Campaigns and Good Corporate Governance are Themes at Activist Investor Conference" published in The Hedge Fund Law Report on January 27.

Highlighting the key speaking topics of The Activist Investor Conference 2010, the article features Mr. Jensen's suggestions for achieving good corporate governance. During his presentation at the conference, he identified the challenges of creating sound corporate governance which largely include balancing the interests of management and shareholders with those of customers, suppliers and employees. Mr. Jensen also noted the importance of executives owning stock in their companies, which he believes creates incentive for them to do what's best for the company. "In the end, you can’t do the right thing by your shareholders if you’re not trying to develop value," he said. "I don’t know if that’s a chief concern for board members who don’t also own the company’s stock."

Financial Recovery Partner Susan Booth was quoted in the article "Regulatory Reform Likely to Restrict Lending", published in the January 25 issue of the California Real Estate Journal.

The article discusses new proposed legislation designed to make changes to the country's financial system with the ultimate goal of protecting consumers and investors. One element of the bill requires banks to preserve a certain level of capital to offset losses from failed loans. Ms. Booth indicates that while this legislation is constructed to give stability and credibility to the financial system, it will also limit the amount of capital available for new commercial loans.

The proposed bill would also give the Federal Reserve Bank the authority to prevent financial institutions from growing so large that their failure puts the entire financial system at risk. Such restrictions could result in making large banks less competitive than smaller financial institutions and private equity funds. "If they have additional requirements they have to satisfy, they won't be able to compete on the same level," Ms. Booth said.

The legislation will also target securitized investments such as commercial mortgage-backed securities (CMBS), which are bonds backed by commercial mortgages. The proposed changes would require the originators of CMBS to hold 5 percent of the loan's risk on their balance sheets, which Ms. Booth predicts will increase the confidence of investors. "There are funds and individuals interested in CMBS," she said. "The legislation has the potential to increase the confidence in that, but it's more of a medium-term impact than a short-term impact."

Political Law partner Christopher DeLacy was quoted in the article "Justices shift campaign-finance rules" in The Philadelphia Inquirer on January 22.

The article discusses a recent U.S. Supreme Court ruling that declared a government ban on political spending by corporations and unions violated the First Amendment. While the ruling will give corporations the right to openly donate money to the political causes of their choosing, Mr. DeLacy indicated that doing so may run the risk of alienating their customers and employees. "Just because you can do it doesn't mean it makes sense," he said.

Mr. DeLacy predicts many organizations will filter spending into other entities to avoid the possibility of damaging their image. "In the end, I think we'll see nonprofit entities like trade associations act as fronts for this type of speech, rather than corporations themselves," DeLacy said. "That gives them cover."

Insurance Partner Thomas Morante and Financial Services Senior Counsel David Sofge wrote an article titled "The Rise and Fall of the Federal Insurance Office" featured in Law 360.

In the article, Mr. Morante and Mr. Sofge detail attempts to increase federal control of the insurance business during the global financial crisis. The National Insurance Protection Act (NICPA) was introduced by members of Congress in part to create an Office of National Insurance (ONI) with a commissioner appointed by the president. Among other tasks, the ONI would have supervisory responsibility regarding life insurance companies, property and casualty insurers, insurance producers, and agents and brokers.

Despite these calls for federal financial and insurance reform, Mr. Morante and Mr. Sofge wrote that momentum for NICPA has begun to slow, halting radical reform of the insurance regulatory landscape and casting doubt over the creation of an ONI. Mr. Morante and Mr. Sofge added that proponents of state-based regulation are likely to prevail as support for federal regulation wanes in Congress.

Mergers and Acquisitions partner Ivan Colao was quoted in the article "Attorneys hope pent-up demand will unlock M&A" published in the Jacksonville Business Journal on January 15, 2010.

The article discussed the global financial crisis, business owners' uncertainty and banks reluctance to release credit, which contributed to less merger and acquisition activity during the past year. Mr. Colao indicated the market for mergers and acquisitions was "basically dead" during the end of 2008 through the start of 2009. He noted that activity has begun to pick up, however, especially among medium and large-sized companies with access to funds.

Private Wealth Services Partner R. Scott Johnston was quoted in the New York Times article "A Bizarre Year for the Estate Tax Will Require Extra Planning" on January 8.

The article examined the potential ramifications that the expiration of the federal estate tax will have on heirs of the deceased. The tax, which has been around in some form since 1916, will take a one year hiatus, returning in 2011. Despite the tax's absence, Mr. Johnston pointed out that heirs could still be responsible for other costs. “We are in uncharted territory right now,” he said.

One expected hurdle is that those who were previously not subject to paying a federal estate tax, may now have to pay a capital gains tax. This includes assets that have appreciated in value over time such as property. It is possible that Congress could reinstitute the tax retroactive to Jan. 1. However, Mr. Johnston noted that uncertainty remains for the upcoming year. “You have to be somewhat hesitant,” he said. “In estate planning, you don’t typically want to be the test case if you’re trying to pass big bucks down through the ages.”

Litigation partners Victor Henderson and Christopher Carmichael and attorneys Darren Goodson and Chelsea Ashbrook were recognized for their pro bono work in a high profile appellate case in the Chicago Daily Law Bulletin article "2 who ran E2 nightclub ask court to remain free during their appeal" published on January 6.

The Holland & Knight team is working on the appeal for the former owner of a nightclub where 21 people were trampled to death in 2003. The deaths occurred during a panic after security guards used pepper spray as a result of a fight on the club's dance floor.

The club's owner, Dwain Kyles, was sentenced to two years in prison for keeping the club open despite a building code violation that was unrelated to the deaths. Mr. Henderson, Mr. Carmichael, Mr. Goodson and Ms. Ashbrook are arguing that the trial court wrongfully considered the deaths in reaching the sentence and that they were not a result of the building code violations, solidified in a previous ruling made by the Appellate Court. Holland & Knight's team was successful in securing a delay to give Kyles an extra week at home, so justices could decide whether he could stay out of prison pending the appeal.

Private Wealth Services partner Andrew Gelman was quoted in the Chicago Daily Law Bulletin article "Expired federal estate tax creates uncertainty for lawyers, their clients" on January 5.

The article focuses on the potential ramifications and uncertainty brought about by the expiration of the federal estate tax. Unless Congress acts otherwise, the tax will disappear for one year, returning in 2011. Despite the absence of the estate tax, Mr. Gelman indicated that heirs could still be responsible for compensating the government, most notably on assets that have appreciated in value. He said the tax has been swapped for a capital gains tax, which is expected to create problems for some small business owners and the less wealthy. "The real message is that having no estate tax this year is a mixed blessing and it's mostly a detriment," Mr. Gelman said.

Aviation Regulation and Customs and Importation of Products Partner Vanessa Sciarra was quoted on a Market Morning Report segment titled, "Laptop flying rules you may not know."

The segment reports on a little-known airport security measure that allows officials to scan through or confiscate a passenger's laptop indefinitely. Since 2008, the government has allowed border agents and other officials to search the contents of any kind of electronic equipment; around a thousand laptops have been seized so far. Ms. Sciarra notes that once the government gets hold of proprietary information, there's no way to know what might happen to it. "It's more of a concern about the fact that if the laptop has sensitive company material on it, do we really want U.S. enforcement border officials looking at that and asking questions," she said.

To read a transcript of the segment or listen to the show, click here.