When a school hires its own students, it can bump up its ranking. One school employs 20 percent of its most recent graduates — and jumped nine spots in the rankings this year.
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Saturday, March 29, 2014
ABA committee backs pro bono requirement for students
The nonprofit organization Equal Justice Works, which offers opportunities for attorneys to represent underserved clients, recently launched Law Students for Pro Bono. In fewer than two weeks, more than 600 students and lawyers had signed a petition asking the ABA to create an aspirational goal for law schools to promote students’ participation in 50 hours of pro bono service before they are admitted to the bar. So the ABA Standing Committee for Pro Bono and Public Service signed on, and supported the 50-hour requirement to the Council of the Section of Legal Education and Admissions to the Bar.
“The student response to the Law Students for Pro Bono campaign has been incredible,” said David Stern, executive director of Equal Justice Works, said in a press release. “Students from across the country have come together to ensure that schools are imparting upon future lawyers the values that are core to the legal profession.”
Source: http://minnlawyer.com/minnlawyerblog/2014/02/03/aba-backs-pro-bono-requirement-for-students/
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Dorsey partner jumps to Cozen O’Connor
Christopher Bellini, the former chair of Dorsey & Whitney’s Private Equity group, has joined the Minneapolis office of Cozen O’Connor.
Cozen opened its Minneapolis office in June 2013 by hiring eight attorneys from the Minneapolis office of Hinshaw & Culbertson. The firm’s office is in the 33 South 6th Street building in downtown Minneapolis.
Bellini was a partner in Dorsey’s Corporate Group, and a member of the Capital Markets, Mergers and Acquisitions and Venture Capital and Emerging Companies practice groups.
Bellini focuses his practice on mergers and acquisitions of publicly and privately held companies and private equity acquisitions and divestitures.
He also assists clients with transactions involving SEC-registered public offerings and private placements, and he works closely with private equity funds and start-up companies with transactions of private equity and venture capital.
He earned an LL.M. from New York University School of Law, where he was graduate editor of the NYU Journal of International Law and Politics, and his J.D. from the University of Minnesota Law School. He also received his B.A. cum laude in economics from the University of Minnesota.
“In just a few short months, Cozen O’Connor has made its mark in Minneapolis, and we are excited that Chris will be part of our team, as we continue to deepen our bench,” said the office managing partner Thomas G. Wallrich in a press release announcing the hire. “Minneapolis is a strong business hub, and our continued growth will allow us to better serve clients in the Midwest and across the country.”
Source: http://minnlawyer.com/minnlawyerblog/2014/01/14/dorsey-partner-jumps-to-cozen-oconnor/
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Obesity can be a disability, at least in Montana
Obesity can be a disability, at least in Montana.
Full decision: BNSF Railway v. Feit (Montana 07/06/2012)
Feit got a ruling from the Montana Department of Labor that BNSF Railway discriminated against him by refusing to hire him because BNSF regarded him as being disabled due to his obesity.
BNSF then went to federal court to get a review of whether it violated the Montana Human Rights Act (MHRA) by refusing to hire Feit because of his obesity.
The federal court then asked the Supreme Court of Montana to decide how to rule, asking this question: Is obesity that is not the symptom of a physiological condition a "physical or mental impairment" as it is used in Montana Code Annotated section 49-2-101(19)(a)?
The Montana Supreme Court answered with a qualified yes. The court answered: Obesity that is not the symptom of a physiological disorder or condition may constitute a "physical or mental impairment" within the meaning of Montana Code Annotated section 49-2-101(19)(a) if the individual's weight is outside the "normal range" and affects "one or more body systems" as defined in 29 CFR 1630.2(h)(1)(2011).
The federal court laid out these facts:
1. BNSF offered Eric Feit a conditional offer of employment as a conductor trainee. The employment was conditioned upon successful completion of a physical examination, drug screening, background investigation, proof of employment eligibility, and BNSF’s Medical History Questionnaire.2. On February 6, 2008, BNSF informed Feit he was not qualified for his “safety sensitive” position because of the “significant health and safety risks associated with extreme obesity.”
3. BNSF told Feit he would not be considered for the job unless he either lost 10% of his body weight, or successfully completed additional physical examinations at his own expense. Regardless of the test results, BNSF did not guarantee Feit a job.
4. With the exception of a sleep study test, Feit successfully completed the additional physical exams BNSF requested. The sleep test cost at least $1,800, and Feit could not afford the test.
5. Because BNSF informed Feit that it would not consider him for the conductor trainee position unless he completed the sleep study, Feit set out to lose 10% of his weight.
6. A genuine dispute exists regarding whether BNSF received documentation of Feit’s weight loss.
The Montana Supreme Court noted that the EEOC Interpretive Guidance distinguished between conditions that were impairments and conditions that were simply physical characteristics, which suggested that a person with normal weight required a physical condition to qualify as an impairment. The court referred to the ADAAA which instructed courts that they were interpreting the statute too restrictively and expressed its specific intent that determination of disability not demand extensive analysis (122 Stat. at 3553-54).
The DISSENT noted that the definition of a "physical and mental impairment" included "any physiological disorder, or condition" that affects a major system of the human body (29 CFR 1630.2(h)(1)), and argued that the plain meaning required a physiological condition be present before an impairment existed.
Source: http://www.lawmemo.com/blog/2012/07/obesity_can_be.html
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SMU's Next Law Dean Has Administrative Background
Southern Methodist University has named Wake Forest University Vice Provost Jennifer Collins as the next dean of its Dedman School of Law. Collins, who has also taught law at Wake Forest since 2003, will assume the SMU deanship in July.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202634048159&rss=rss_nlj
Court Grills SEC Over Costly Conflict Minerals Rule
One of the most controversial — and costly — rules in U.S. Securities and Exchange Commission history is under scrutiny by a panel of federal appellate judges, who questioned whether the requirement that publicly traded companies disclose the use of certain minerals from the war-torn Democratic Republic of the Congo violates the First Amendment.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202636876934&rss=rss_nlj
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LawBiz® Legal Pad: Suing the Client
Should attorneys take legal action against clients who haven't paid? This week, Ed weighs in on the pros and cons of suing clients.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/BydiUSHJWZA/
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Tenth Circuit Looks Past “General Partnership” Labels in Agreements to Determine Whether Certain Investments Constitute “Securities”
In SEC v. Shields, No. 12-1438, 2014 U.S. App. LEXIS 3369 (10th Cir. Feb. 24, 2014), the United States Court of Appeals for the Tenth Circuit reversed the district court’s order granting defendants’ motion to dismiss, holding that the complaint alleged sufficient facts to (1) raise a plausible claim that the interests at issue involved are securities, and (2) rebut the presumption that an investment labeled as a “general partnership” is a “security.” The Tenth Circuit’s holding reaffirms that although an investment may be labeled as a “general partnership” interest, courts must look beyond the labels to determine whether the investment constitutes a “security.”
The Securities & Exchange Commission (“SEC”) filed a civil enforcement action against Jeffory Shields a/k/a Jeffrey D. Shields, Geodynamics, Inc. (“Geodynamics”), four joint ventures and others, alleging violations of Sections 5(a) and 17(a) of the Securities Act of 1933, 15 U.S.C. §§ 77e(a), 77e(c), 77q(a); Sections 10(b) and 16(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78o(a); and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5. The SEC alleged that Shields, managing partner of Geodynamics, offered and sold over $5 million of interests in oil and gas exploration and drilling joint ventures to sixty investors across 28 states. The money collected was used to fund GeoDynamics. Shields allegedly marketed the oil and gas drilling ventures to individuals with little experience in the oil and gas exploration business by making cold calls to thousands of people and promising annual returns of between 256% and 548%. The SEC alleged that Shields denied investors access to information, lied to investors to keep them misinformed and comingled funds.
Shields provided potential investors with offering documents which stated explicitly that the investors had the rights of general partners, and that the joint venture interests were not securities. In addition, the documents provided the investors with the power to remove the managing venturer, GeoDynamics, the right to terminate the partnership, and the right to inspect records. However, unlike GeoDynamics, the investors did not have the power to bind the joint ventures by executing contracts, spending funds, or interpreting contracts. Additionally, the investors were required to sign drilling and completion contracts, thereby locking themselves into contracts with GeoDynamics, who unilaterally set the contract price.
Defendants moved to dismiss the SEC’s complaint. Defendants asserted that the investments at issue were general partnership interests, as stated in and evidenced by the agreements, not securities. Because they were not securities, defendants argued, the SEC failed to state a claim upon which relief could be granted. The United States District Court for the District of Colorado granted defendants’ motion to dismiss. The district court reasoned that the SEC’s allegations were “insufficient to state a plausible claim that the joint venture interests at issue” were securities. The SEC appealed.
The Tenth Circuit reversed. The Court acknowledged that an investment contract, which is a type of security, exists where there is “(1) an investment, (2) in a common enterprise, (3) a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.” The Court focused solely on the third requirement. The third requirement is satisfied, the Court explained, when the efforts of individuals other than the investor significantly affect the “success or failure of the enterprise.” Additionally, the Court acknowledged that while there is a general presumption that a general partnership is not a security, this presumption is rebuttable. The Court looked to Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981), which provided examples of situations when a general partnership can be a security, such as when the agreement leaves little power in the partner’s hands, when the partner lacks experience and knowledge that he or she is incapable of exercising his or her partnership powers, or where the partner is so dependent on a unique entrepreneurial or managerial ability that he or she cannot replace the manager or exercise his or her partnership powers.
Based upon these principles, the Tenth Circuit held that the allegations in the complaint raised a plausible claim that the interests involved were securities. Specifically, the SEC raised issues of fact regarding whether the investors were relying upon the efforts of GeoDynamics and Shields to “significantly affect the outcome of the ventures.” Additionally, the Court held that the SEC alleged sufficient facts to “rebut the presumption that the purported general partnerships here [were] not securities.” The Court reasoned that the complaint satisfied the factors in Williamson to rebut the presumption, as the SEC alleged facts to show that the investors had limited power to control or manage the investment — even if they removed GeoDynamics as the manager, they were still locked into contracts with GeoDynamics. These contracts were the key ways in which the investors would make profits. Thus, the investors were required to rely on GeoDynamics for the success of their joint venture.
Also, the SEC alleged that the investors had little or no experience in the oil and gas drilling business, which meant that they relied upon Shields to provide them with the necessary information. The Court held that this raised a factual issue as to whether their voting rights, which were provided in the agreements, were illusory or a sham. Additionally, the SEC alleged that Shields marketed GeoDynamics as having a unique expertise in the oil and gas industry, so much so that he was able to offer annual profits of 256% and 548%. The Court held that the investors’ lack of experience in the industry combined with the GeoDynamics’ expertise, forced the investors to completely rely upon GeoDynamics, thereby raising an issue of fact as to whether the investors had any other alternative than to continue with GeoDynamics. Thus, the investors lacked the control or management abilities of general partners.
The Court in Shields held that the disctric court erred because it “focused only on the form of the [joint venture agreements] . . . without considering the economic realities of the transactions and the investors’ lack of access to information needed in order to actually use the powers reserved to them under the [agreements].” Although an agreement may expressly state that the parties involved are general partners and that the interests are not securities, such interests may still be considered securities and subject to federal securities regulations if the agreement is found to be an investment contract or the facts show that the presumption that a general partnership is not a security is rebutted. As confirmed by Shields, parties may be subject to federal securities regulations even if they explicitly state in their agreements that the interests involved are general partnerships and not securities.
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Indiana governor signs bill allowing guns on school property into law
[JURIST] Indiana Governor Mike Pence [official website] signed into law HB 1048 [legislative materials] on Wednesday, allowing adults to carry a concealed weapon locked in vehicles on school property. The current law in Indiana makes it a felony for any gun permit holder to have a firearm in their car while they are on school property. A spokesperson for the governor said the aim of the bill [Indy Star report] is to allow parents to keep locked guns in their...
Source: http://jurist.org/paperchase/2014/03/indiana-governor-signs-guns-rights-bill-into-law.php
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Friday, March 28, 2014
I Spoke Too Soon
My expectations that SJ would be moving to new digs at WordPress yesterday were brutally dashed. My initial reaction was to say "screw it, this isn't worth the hassle anymore," but I spoke with a few friends who persuaded me not to give up the effort.
It appears that my plans, having already gone through at least three iterations, need to be redrawn. While I remain disinclined to spend a substantial amount of money to make this happen as a matter of principle, the amount of work needed to accomplish this task has proven to be far harder, more involved and less interesting than previously thought. At the moment, I have neither a solution nor a plan being carried out for an imminent move. Without one, SJ will vanish one day when GoDaddy pulls the plug.
Hopefully, I will figure out a way to accomplish the move before that. In the meantime, I'll resume what I do here and if it ends up vanishing one day for lack of a viable plan, so be it. It's the best I can do for the time being and under the circumstances. Sorry that things haven't worked out better thus far, but I'm still working on it.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
It appears that my plans, having already gone through at least three iterations, need to be redrawn. While I remain disinclined to spend a substantial amount of money to make this happen as a matter of principle, the amount of work needed to accomplish this task has proven to be far harder, more involved and less interesting than previously thought. At the moment, I have neither a solution nor a plan being carried out for an imminent move. Without one, SJ will vanish one day when GoDaddy pulls the plug.
Hopefully, I will figure out a way to accomplish the move before that. In the meantime, I'll resume what I do here and if it ends up vanishing one day for lack of a viable plan, so be it. It's the best I can do for the time being and under the circumstances. Sorry that things haven't worked out better thus far, but I'm still working on it.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/12/i-spoke-too-soon.aspx?ref=rss
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Kansas' Unauthorized LL.M. Program Draws ABA Censure
The University of Kansas School of Law must pay a $50,000 fine for admitting two foreign attorneys into a new LL.M. program that the American Bar Association had not approved.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202634055202&rss=rss_nlj
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Project Aims To Attract, Train Public Defenders
Atlanta-based nonprofit Gideon's Promise has launched a new program called the Law School Partnership Project, aimed at making it easier for Southern public defenders to hire talented new law graduates.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202631276654&rss=rss_nlj
LawBiz® Legal Pad: Rule 1.17
Ed discusses Rule 1.17 and how it pertains to succession planning.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/uC3D-ERog7c/
High Court Considers Definition Of Domestic Violence In Gun Case
Even without proof of physical force, people convicted of minor domestic violence offenses can be barred from possessing a gun, the justices ruled Wednesday.
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Corruption Probes Target Mayor and Two State Lawmakers in Three States
It's been quite the eventful day for law-enforcement authorities on the corruption front.
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Supreme Court allows Lanham Act claim in copyright infringement case
[JURIST] The US Supreme Court [official website] on Tuesday issued a unanimous ruling in Lexmark v. Static Control Components holding [opinion, PDF] that Static did not lack standing to assert a Lanham Act claim in defense of a copyright infringement action brought by Lexmark. The case revolved around the use of certain microchips allowing refurbished printing cartridges to be used in Lexmark printers. Lexmark [official website] developed a chip only allowing cartridges refurbished and sold by the company to be...
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Lender Can’t Collect Deficiency for Repo
Plaintiff finance company has not carried its burden of proof and the Richmond Circuit Court denies its claim for a money deficiency following repossession of a motor vehicle on a conditional sales contract. Defendant denies liability on the ground that she did not sign the agreement. Plaintiff’s evidence did not establish that anyone observed defendant ...
Source: http://valawyersweekly.com/2014/01/02/lender-cant-collect-deficiency-for-repo/
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LawBiz® Legal Pad On the Road!: Cellphones
Do you ever talk on the phone while you drive? In today's clip, Ed warns law firms that they could be exposed to legal liability if one of their attorneys causes an accident while using his or her phone behind the wheel.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/9IFUqbRw9Wc/
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2014 Compliance Checklist for Investment Advisers
For those of you still easing into 2014, we thought that now would be a good time to help you plot out your regulatory and internal compliance schedules for the upcoming calendar year.
Annual Regulatory Filings
- Form ADV—All registered investment advisers (“RIAs”) and exempt reporting advisers (“ERAs”) must file an annual amendment to Form ADV with the SEC and/or state securities authorities within 90 days of the end of their fiscal year (which is March 31 for a December 31st fiscal year). Otherwise Form ADV amendments are only required in the event of material changes to the RIA’s business (please consult your compliance counsel to determine materiality of any changes).
- Form PF—Most RIAs must file an updated Form PF with the SEC annually within 120 days of fiscal year end. Note that advisers to large hedge and liquidity funds must file on a quarterly basis within 60 days and 15 days, respectively, of quarter end.
- SEC Form D—Form D filings for funds with ongoing offerings need to be amended on an annual basis, on or before the anniversary of the initial SEC Form D filing (common for hedge funds and increasingly common for private equity funds – at least upon the first anniversary).
- We note that Form D has changed slightly due to the Dodd-Frank Act Reg D “bad actor” prohibitions that were finally adopted by the SEC in July 2013, in particular due to a new “bad actor” certification required under Rule 506(d) of Reg D.
- Also, keep alert for SEC action on further proposed changes to the Form D, which could have a major impact on Form D filings (and potentially how attractive an option Reg D is).
- Schedule 13G/D and Section 16 Filings—Advisers who exercise investment discretion over funds that are beneficial owners of 5% or more of a registered voting equity security must report these positions on Schedule 13G or Schedule 13D. Please note that Schedule 13G filings must be updated annually within 45 days of the end of the year (by February 14, 2014). Advisers should also review any necessary Section 16 filings.
- Form 13F—Advisers must file a Form 13F if it exercises investment discretion with respect to $100 million or more in certain identified 13F securities within 45 days after the end of the year in which the adviser reaches the $100 million filing threshold. Thereafter, advisers must make 13F filings within 45 days after end of calendar quarter. The list of 13F securities may be found here.
- Form 13H—Advisers who meet the SEC’s “large trader” thresholds (in general, trades (i) 2 million shares or $20 million FMV daily or (ii) 20 million shares or $200 million FMV monthly) are required to file an initial Form 13H with the SEC within 10 days of crossing the threshold. Large traders also need to amend Form 13H annually within 45 days of the end of the year and make quarterly update filings to the extent that information changes.
- US Tax & Treasury Department
- FATCA—Foreign Account Tax Compliance Act (“FATCA”) requires certain financial institutions (including advisers to pooled investment funds) to identify and disclose direct and indirect US investors and withhold U.S. income tax on nonresident aliens and foreign corporations or be subject to a 30% US withholding tax. Advisers should review their compliance with FATCA.
- Form SLT—Private fund sponsors that have portfolio investments in foreign issuers or have issued interests in their funds to foreign residents may be required to report these transactions on the Treasury International Capital system on a monthly basis.
- CFTC & NFA
- Advisers relying on the exemption from registration with the CFTC pursuant to Rule 4.13(a)(3), the “de minimis exemption,” must reaffirm their claim of exemption each year annually by March 1 (within 60 days of the end of the calendar year).
- Registered CPOs and CTAs must prepare and file annual filings with the National Futures Association. Registered CPOs must also prepare and file their fourth quarter report for each commodity pool (Form CPO-PQR), and CTAs must file a quarterly Form CTA-PR within 45 days of the end of the quarter.
Annual Audits and Recordkeeping
- Custody Rule Annual Audit—Most RIAs comply with certain custody procedures by having an independent public accountant registered with the Public Company Accounting Oversight Board prepare audited financial statements in accordance with GAAP and sending such audited financial statements to the investors within 120 days after the fund’s fiscal year end.
- The SEC staff have made clear in numerous settings that they are dedicating heightened attention in upcoming exams to compliance with the custody rules of RIAs of private funds. So particular vigilance to the (none-too-simple) strictures of Rule 206(4)-2 is recommended. This link is to the SEC’s recent release regarding examination priorities.
- Annual Privacy Policy Notice—Advisers should provide its individual investors with a copy of its privacy policy.
- Pay-to-Play and Lobbyist Rules—Review state and local lobbyist rules to ensure that lobbyist reporting is current for internal investor relations professionals who may meet the definition of placement agents.
Internal Compliance Matters
- Annual Compliance Review—RIAs must conduct an annual review of their compliance policies and procedures. (Rule 206(4)-7 of the Investment Advisers Act of 1940)
- Annual Training—RIAs should consider instituting annual RIA compliance training for employees. (Although not technically required by the rules under the Investment Advisers Act of 1940, the SEC encourages investment advisers to conduct training for employees.)
- New Issue Status—Advisers need to confirm or reconfirm on an annual basis the eligibility of investors that participate in initial public offerings or new issues pursuant to both FINRA Rules 5130 and 5131.
- ERISA Status—Advisers should consider annually confirming the ERISA percentage of their funds. For funds that rely on VCOC and REOC exemptions, they will have testing periods that are proscribed by the date of their initial investment.
- HSR Thresholds—Review HSR thresholds to monitor HSR filing requirements.
For further information regarding the foregoing, please contact either Thomas Devaney at (212) 634-3042 or Jung Yeon Son at (650) 815-2676.
Source: http://www.corporatesecuritieslawblog.com/2014/02/2014-compliance-checklist-for-investment-advisers/
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