JD Scoop

For your reference, here's a reading list of recent commentary and analysis by lawyers and law firms on JD Supra covering the various aspects of running a non-profit organization:

- The Dodd-Frank Act and Implications for Nonprofit Organizations (by Venable LLP):

"While many of the provisions of the Dodd-Frank Act apply specifically to financial services firms and their related activities, the Act does include a handful of key provisions that may impact generally the nonprofit community. In addition, the Dodd-Frank Act makes sweeping changes in how financial products and services are regulated that will impact a number of nonprofit organizations directly due to new regulations and compliance requirements.

Nonprofit leaders should look carefully at the provisions of the Dodd-Frank Act and determine whether their organization's fall under any of its provisions and, to the extent that they do not, how they may address practices required under the Act, even if not mandated by law. In addition, there are a number of opportunities for nonprofits in the areas of financial literacy and consumer education. Of course, there also will be no shortage of opportunities for financial services industry trade associations to weigh-in on issues of importance to their memberships.

This article will provide some general background and review the main provisions most likely relevant to nonprofit organizations..." Read on>>

- Key Nonprofit Corporate Law Developments in 2010 (by McDermott Will & Emery):

"The year 2010 witnessed an extraordinary series of developments in nonprofit corporate and charitable trust law as they affected the governance and operation of hospitals and health care systems. This is consistent with a decade-long trend that has made corporate law and governance key legal feasibility considerations for nonprofit organizations.

These developments reflect the following general trends: (a) increased oversight from state and federal charity regulators; (b) greater focus on corporate governance practices; (c) closer scrutiny of the exercise of business judgment by boards; (d) the evolution of system structures and business combinations; (e) the governance implications of an economy in transition; and, notably, (f) the challenges and opportunities arising from the March, 2010, enactment of the Patient Protection and Affordable Care Act (PPACA).

Based on these trends, our ''top ten'' list of major nonprofit corporate law developments for health care providers in 2010 is as follows..." Read on>>

- New Limits on Online Marketing: The Implications for Nonprofit Organizations (by Venable LLP):

"Many nonprofit organizations that market online may rely upon recurring charges for enrollment in membership offers, and other subscription programs, as well as online processing of payment transactions. But now, online advertisers, marketers and merchants will have to comply with a new set of requirements under the "Restore Online Shoppers' Confidence Act," S. 3386 (the "Act"). The Act was signed into law by President Obama on December 29, 2010. As a result, nonprofit organizations with online sales - especially ones with third party marketing relationships or that sell "continuity" programs (e.g., recurring periodic billing) - will need to review their online activities carefully under the new law to ensure compliance..." Read on>>

- Board Members Beware - SEC Regulatory Authority May Cast Wide Net (by Thompson Coburn LLP):

"Governmental board members and board members of nonprofit organizations may be "in the sights" of the Securities and Exchange Commission (SEC) if their organizations are involved in the issuance of municipal bonds, including tax-exempt bonds. Federal statutes known as the Dodd-Frank Wall Street Reform and Consumer Protection Act recently adopted by Congress (the Act) amended the Securities Exchange Act of 1934 (the 34 Act) to add a new requirement that "municipal advisors" register with the SEC. The definition of municipal advisor, as interpreted by the SEC, is potentially quite broad and could include appointed members of the governing body of an issuer of municipal bonds or the entity borrowing the proceeds thereof. For example, the Act could apply to the board members of a local industrial development authority or a private college..." Read on>>

- The Director's Dozen: Prudent Activities for Governing Boards of Nonprofit Corporations (by Foley Hoag):

"Directors of nonprofit corporations owe fiduciary obligations to the corporation. They are bound by Massachusetts law to perform their duties as directors in good faith, in a manner reasonably believed to be in the best interests of the corporation, and with such care as an ordinarily prudent person in a similar position would exercise under similar circumstances. As stewards of the nonprofit corporation, directors are required (1) to act with care in their oversight and, (2) to keep the interests of the corporation paramount above their own personal interests when acting for, or on behalf of the corporation. These legal duties are known as the duty of care and the duty of loyalty.

The following guidelines describe some actions directors should take to fulfill their legal duties..." Read on>>

- New Limits on Nonprofit Securities Exemption (by Warner Norcross & Judd):

"Effective Jan. 1, 2011, debt securities of nonprofit organizations will qualify for the nonprofit exemption from registration in Michigan only if the maximum offering amount is $500,000 or less and the securities are sold exclusively to bona fide members of the organization without payment of a commission or consulting fee.

The process for completing a registration by qualification of nonprofit organization debt securities has been simplified, however, and may be accomplished by filing the offering documents with the Michigan Office of Financial and Insurance Regulation (OFIR) and paying a $250 flat fee. For nonprofit organizations, the registration fee will not be calculated based on the offering amount in Michigan. The registration filing must be made at least 20 business days before making offers or sales in the state..." Read on>>

- Yellow Flags, Red Flags: What's a Board to Do? (by McDermott Will & Emery):

"In two recent instances, a nasty and salacious controversy between a reputable nonprofit health care organization and its CEO has served to shine a bright (and unfavorable) light on the subject of board responsiveness to suspicious conduct or events.

Both instances fueled intense media scrutiny and prompted an internal legal investigation of the underlying facts. One spawned competing litigation complaints filed by the board and the CEO, respectively, and allegedly sparked an IRS examination. The other involved a state attorney general review of the board's responsive conduct, the results of which review were made publicly available. Both instances resulted in extraordinary financial and reputational damage to the involved institutions and individuals. Most notably, in both instances warning signs were presented to individual board members (if not the full board) long before events prompted the full board to commence an investigation..." Read on>>

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For your reference: what lawyers and law firms on JD Supra are writing about the January 4th, 2011, decision in Uniloc v. Microsoft:

- Uniloc v. Microsoft: Federal Circuit Confirms Necessity Of Tying Damages Theory To Facts Of The Case (by Wilson Sonsini):

"The Federal Circuit's January 4, 2011, ruling in Uniloc USA Inc. v. Microsoft Corp. is a significant decision regarding damages recovery in patent infringement claims. The Uniloc holding abolished the "25 percent rule"--a methodology sometimes used to calculate reasonable royalty for infringement damages--as a "fundamentally flawed tool for determining a baseline royalty rate in a hypothetical negotiation." And, in keeping with the recent trend of denying overly broad applications of the "entire value market rule," the Federal Circuit rejected the methodology used by Uniloc's expert because the patented invention did not drive consumer demand for the accused products.

In short, Uniloc v. Microsoft signals that to prevail on a damages claim, the patentee must carefully lay a factual foundation that establishes the relevance of any analytical tool used by the patentee's expert to the facts of the case--the patents in suit, the products, and the parties..." Read more>>

- What Kind of Bag Holds a $19B Cat? Uniloc v. Microsoft: Federal Circuit Rules on Reasonable Royalty Damages Issues (by Fenwick & West):

"Eliminated the criticized 25% "rule of thumb" frequently used as a baseline for determining reasonable royalty damages, and ... It clarified that evidence of entire market value calculations--where the plaintiff attempts to tie the reasonable royalty to the full value of a product containing the patented invention--will not be permitted in absence of clear economic justifications..." Read more>>

- CAFC in Patent Damages Case: "25% Rule" is Fundamentally Flawed (by Gary Colby):

"In the decision, the Panel rejected use of the '25% Rule' as a basis for expert testimony relating to estimating damages in a patent infringement case. The Panel held that, at least without sound reasoning for applying the 25% Rule to the specific facts of a patent dispute, expert testimony applying that rule lacks sufficient relevance to be admissible under the US Supreme Court's Daubert test for admissibility..." Read more>>

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For your reference, here's a look at what JD Supra lawyers are saying about the recent Massachusetts Supreme Judicial Court decision in U.S. Bank, Nat'l Ass'n. v. Ibanez, "where two mortgage foreclosures were invalidated because the foreclosing lenders were not able to produce sufficient proof of mortgage ownership."

- MA Supreme Judicial Court Affirms Land Court Ruling in Ibanez Decision (by Partridge Snow):

"The SJC is one of the first state supreme courts to weigh in on the evidence necessary for foreclosing lenders to demonstrate that they validly hold mortgages they are attempting to foreclose. Last week the suspense ended. On January 7, 2011, the SJC issued its opinion in the Ibanez case that makes clear that the foreclosing lender must be able to document ownership of the mortgage to be foreclosed before issuing notices of foreclosure. Importantly, however, the SJC did not restrict evidence of mortgage ownership to fully executed assignments in "recordable form," as the Land Court had found...

The effects of the Ibanez case on the industry are uncertain. On the one hand, the holding -- that to fulfill the statutory power of sale requirements, a foreclosing party must be "[t]he mortgagee or his administrators, successors or assigns" -- does no more than apply legal principles and requirements already well established in Massachusetts law. The SJC acknowledged as much, by stating that the ruling is not limited to prospective foreclosures because it does not reflect a change in the law. On the other hand..."

Read Patridge Snow's complete analysis of Ibanez here>>

- Banks Lose Important Foreclosure Case In Massachusetts High Court (by Sheppard Mullin):

"One of the arguments made by US Bank and Wells Fargo was that, because they held the mortgage note, they had a sufficient financial interest in the mortgage to allow them to foreclose. The law of many states provides that the mortgage follows the note, so that if a party has possession of the note, it is presumed to have good title to the mortgage. Massachusetts, however, is not one of those states. In Massachusetts, where a note has been assigned but there is no written assignment of the mortgage underlying the note, the assignment of the note does not carry with it the assignment of the mortgage. Rather, the holder of the mortgage holds the mortgage in trust for the purchaser of the note, who has an equitable right to obtain an assignment of the mortgage, which may be accomplished by filing an action in court and obtaining an equitable order of assignment. In the absence of a valid written assignment of a mortgage or a court order of assignment (neither of which were provided by either US Bank or Wells Fargo), the mortgage holder remains unchanged..."

Read all of Sheppard Mullin's Ibanez analysis here>>

- Apocalypse Now? Will The Massachusetts Ibanez Case Unravel Widespread Irregularities In The Residential Securitized Mortgage Market? (by Richard Vetstein):

"The Ibanez ruling clearly invalidates a common practice in the sub-prime mortgage securitization industry of assigning the promissory note and mortgage in blank and not recording it until after the foreclosure process has started. The Court held that there must be evidence of a valid assignment of the mortgage at the time the foreclosure process starts which would establish the current ownership of the mortgage...

...The major problem for banks is mounting evidence is that originating lenders never transferred a vast number of loans into the securitized trusts in the first place. Josh Rosner, a well respected financial analyst, issued a client advisory in October 2010, advising of widespread violations of pooling and servicing agreements on mortgages. Mr. Rosner counseled that although PSA's require transfer of the promissory notes into the securitized trusts, that hardly ever occurred in the white hot run-up of securitized loans in the last decade. He also says that the mortgage assignments which must accompany each note are routinely ignored or left blank. (This was the major problem in the Ibanez case).

Before the Ibanez ruling came down Bloomberg News said the best scenario is that the disputes are deemed as legal technicalities, which would cause a one-year delay in foreclosures. In the medium case, years of litigation will ensue. In the worst case, the problem becomes systemic, causing ―the mortgage market to grind to a halt as title insurers refuse to insure mortgages involving existing homes Well, we now know from the Ibanez decision that this is hardly a ―legal technicality. So we are in the medium or worst case scenarios. For those thousands (or millions?) of defaulted loans which were ―assigned in blank. I'm simply not sure if or how mortgage lenders are going to be able to cure the title defects they created. It's going to take some major effort and creative lawyering, that's for sure..."

Read Richard Vetstein's complete analysis of Ibanez here>>

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Also see:

- US Bank, N.A. v. Ibanez, Slip Opinion, SJC-10694 (posted by George Bourguignon):

"The Massachusetts Supreme Judicial Court has issued its long awaited decision related to foreclosure defense: US Bank, N.A. v. Ibanez. This decision was decided in the consumer's favor and ruled that the prior foreclosures that occurred in Springfield, Massachusetts were not proper. The court affirmed that the banks did not have title to the mortgage when they published the required notices of the expected foreclosure sale or actually conducted the foreclosure sale. It is reported that this case will establish that many prior foreclosures were conducted improperly..."

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For your reference, a JD Supra reading list: what lawyers are saying about small business incentives in the Tax Relief Act of 2010:

- Small Business Investment Incentives (by Sanford Millar):

"Among the small business incentives in the 2010 Tax Relief Act (the Act) signed into law last week by president Obama is a provision that increases incentives to invest directly in small businesses. Section 760 Act amends section 1202 of the Internal Revenue Code (the Code). The Code now provides for that if an investment is made in 2011 in stock of a qualified small business and the stock is held for five (5) years the gain is tax free..." Read more>>

- Tax Relief Act of 2010 (by Armstrong Teasdale):

"One Hundred Percent Exclusion of Gain from the Sale of Small Business Stock. Under the Small Business Jobs Act of 2010, the gain from the sale of qualifying small business stock that is acquired after September 27, 2010 and prior to January 1, 2011 and held for more than five years is excluded from the income of a non-corporate taxpayer. The Tax Relief Act extends the exclusion for one more year, for stock acquired before January 1, 2012..." Read more>>

- The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (by Duane Morris):

"Maximize net operating loss (NOL) carrybacks. A new law enacted last November makes it easier for most businesses to dig up immediate tax savings from NOLs by allowing them to be carried back to earlier years. This allows businesses that have incurred tax losses during the recent economic downturn to recover taxes paid in profitable prior years. In deciding whether to elect to carry back an NOL three, four or five tax years, taxpayers should assess whether the election will result in the largest tax refund..." Read more>>

- President Signs Tax Relief, Unemployment Insurance Reauthorization and Jobs Creation Act of 2010 (by Luce Forward):

"Small Business Expensing. Under prior legislation, for taxable years beginning in 2010 and 2011, small businesses may elect to expense up to $500,000 of capital investment, with the phase out beginning at $2,000,000. The limits were scheduled to be lowered to $25,000 with a $200,000 limitation for 2012. Under the new law, for 2012, such amount is raised to $125,000, with a phase out threshold of $500,000 (both figures to be adjusted for inflation). A $25,000 maximum and $200,000 phase out threshold will apply for tax years beginning after 2012 and will not be adjusted for inflation..." Read more>>  

- 2010 Tax Relief Act brief (by Stephen Swarts):

"On the business side, many tax breaks that expired at the end of 2009 have been retroactively reinstated and extended through 2011. Among these, businesses may write off 100% of their equipment and machinery purchases, effective for property placed in service after September 8, 2010 and through December 31, 2011. For property placed in service in 2012, the new law provides for 50% additional first-year depreciation..." Read more>>

- SZD Tax Alert: Tax Relief Act of 2010 passed by Congress (by Schottenstein Zox & Dunn):

"Payroll tax reduction During 2011, employees and self employed workers will receive a two-percentage point reduction in Social Security payroll tax, bringing the rate paid by employees down to 4.2 percent and the rate paid by self-employed individuals down to 10.4 percent..." Read more>>

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Related:

- Tax Relief Act of 2010: What Lawyers Are Saying

Learn more:

Read Tax Alerts on LinkedIn | Twitter | Facebook | JD Supra

[Updated January, 24, 2011:]

Copy: FCC's Report & Order on Net Neutrality (194 pages; posted by Gerry Elman):

"On Dec. 23, 2010, the FCC released this controversial order on broadband industry policies. Whether the FCC has jurisdiction and power to govern this subject matter, and whether this achieves the objective of net neutrality, is hotly debated." See report>>

- Net Neutrality at the FCC: A Critique of the Legal Reasoning of its Net Neutrality Order (by Davis Wright Tremaine LLP):

"The rules are based on the FCC's determination that regulation is necessary to assure the continued growth and development of the Internet. That is a departure from previous FCC administrations, for whom, with a few exceptions, "Hands off the Internet" was not just a slogan, but a policy.

Among those deregulatory programs, most relevant for present purposes are those classifying broadband Internet access as an "information service," rather than a "telecommunications service." The "classification orders" reflected the FCC's view that broadband should be exempt from traditional common carrier / public utility regulation (e.g., the obligation to provide just, reasonable, and nondiscriminatory service upon request, transfer of control oversight, and possible regulation of rates, among others). The FCC viewed such regulation as a deterrent to broadband investment..." Read more>>

- FCC Approves Controversial Net Neutrality Rules (by Sheppard Mullin):

"According to the Order, the rules can be summarized as achieving three main objectives: (i) transparency; (ii) no blocking; and (iii) no unreasonable discrimination. More specifically, 'fixed and mobile broadband providers must disclose network management practices, performance characteristics, and terms and conditions of their broadband services.'..." Read more>>

- FCC Net Neutrality Announcement-December 1, 2010 (by Owen Kurtin):

"Yesterdayʼs announcement by Federal Communications Commission Chairman Julius Genachowski that the Commission will pursue enactment of rules to ensure unblocked, non-discriminatory access to the Internet without attempting to re-classify broadband from its existing classification as Communications Act of 1934 Title I 'Information Service' to Title II 'Telecommunications Service' is a victory for net neutrality proponents and common sense, as well as a vindication of the position we took in May. The rules may be adopted at a full Commission meeting on December 21..." Read more>>

- Why Net Neutrality Rules and Broadband "Third Way" Reclassification Are Unnecessary and Unlawful (by Glenn Manishin, Duane Morris LLP):

"The highly polarized debate over so-called net neutrality at the Federal Communications Commission exposes serious philosophical differences about the appropriate role of government in managing technological change. Neither side is unfortunately free either from hyperbole or fear-mongering.1 And neither side is completely right..." An 18-page analysis by noted tech policy lawyer, Glenn Manishin. Read more>>

 Net Neutrality from the JD Supra Archive:

• Network Neutrality Generates a Contentious Debate Among Experts: Should Consumers be Worried? (July, 2010 - Cody Vitello)
  
• Net Neutrality Is Dead; Long Live Net Neutrality (April, 2010 - Duane Morris)
• FCC Faces Hurdle of Brand X Ruling (May, 2010 - Owen Kurtin)
• Newsletter media/IP/IT n°4 (Nov, 2010 - Richard Milchior)
  
• FCC Loses Net Neutrality Suit (April, 2010 - Sheppard Mullin) 
• FCC Initiates Net Neutrality Rulemaking (Nov, 2009 - Sheppard Mullin)
• FCC'S "Net Neutrality" Looking To Regulate The Internet? (Nov, 2009 - Duane Morris)
  
• Telecom and Broadcast Policy Under the Obama Administration (Jan, 2009 - Duane Morris)
  

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Stay on top of this issue. Follow JD Supra's Communications & Media Law feed on LinkedIn.

For your reference, a list of some of the most-viewed documents on JD Supra for December, 2010:

1. Townsends, Inc. - Major Poultry Producer - Filed for Chapter 11 Protection
[By: Randall Reese netDockets.com |In: Bankruptcy]

2. Tax Relief Act of 2010
[By: Armstrong Teasdale LLP |In: Tax Law]

3. Compliance with the New Risk-Based Pricing Rule
[By: Morrison & Foerster LLP |In: Finance & Banking, Consumer Protection]

4. Frudakis vs. Merck Pharmaceutical - Complaint Against Merck for Failing to Pay Drug Sales Reps Overtime
[By: Blumenthal, Nordrehaug & Bhowmik |In: Employment Law]

5. SZD Tax Alert: Tax Relief Act of 2010 Passed by Congress
[By: Schottenstein Zox & Dunn |In: Tax Law]

6. Court Reporters And Legal Videographers - Is There A Future? (My Opinion)
[By: Kramm Court Reporting |In: Law Practice]

7. One Fall To A TPA's Finish
[By: The Rosenbaum Law Firm |In: Tax Law, Employment Law]

8. Molecular Insight Pharmaceuticals Files for Bankruptcy Protection in Massachusetts
[By: Randall Reese netDockets.com |In: Bankruptcy]

9. Loss of Consortium Claims: Discovery Can be Brutal
[By: Collins & Collins, P.C. |In: Civil Procedure & Remedies, Personal Injury]

10. How An Investment Advisor Can Lose Retirement Plan Clients Without Really Trying
[By: The Rosenbaum Law Firm |In: Tax Law, Employment Law]

11. Expanded 1099 Reporting for Rental Property Owners
[By: Duane Morris LLP |In: Real Estate, Tax Law]

12. The Nine-Word Copyright Opinion: Costco v. Omega
[By: Winthrop & Weinstine, P.A. |In: Intellectual Property]

13. Reid-McConnell Job Creation Act Provides 100 Percent "Bonus Depreciation", Dubbed the Largest...
[By: Morrison & Foerster LLP |In: Employment Law, Tax Law]

14. Federal Estate Tax Reinstated at New Exemption Levels
[By: Manatt |In: Trusts & Estates, Tax Law]

15. Open Source Software in the Cloud
[By: Winthrop & Weinstine, P.A. |In: Computers & Technology]

16. Legislative Update: Estate Tax Provisions
[By: Cole Schotz |In: Trusts & Estates, Tax Law]

17. Final 2011 Medicare Physician Fee Schedule Update Implements Key Reform Provisions
[By: McDermott Will & Emery |In: Health Law]

18. 2010 year-end estate planning opportunity by Susan Shields
[By: McAfee & Taft  |In: Trusts & Estates, Tax Law]

19. TriCare Network Contracts Create Affirmative Action Obligations for Health Care Providers
[By: Poyner Spruill LLP |In: Health Law, Employment Law]

20. New Form I-129 Requires Immediate Employer Attention to "Deemed Export" Issues
[By: Mintz Levin |In: Immigration Law, Technology]

21. Going Over The Top At Disneyland: Sleazy Union Tactics In "The Happiest Place On Earth"
[By: Fisher & Phillips LLP |In: Employment Law]

22. Our e-Discovery Predictions for 2011
[By: The Posse List |In: Electronic Discovery]

23. "No Refusal" DUI Checkpoints
[By: Law Offices of David Benowitz |In: Criminal Law]

24. Papadopoulos v. Target Corp. - SJC decision in landlord liability for snow accumulation
[By: Doug Cornelius |In: Real Estate]

25. New HIRE Act Stimulus to Businesses
[By: Foley Hoag LLP |In: Employment Law, Tax Law]

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Archive:
- Most-viewed on JD Supra: November, 2010
- Most-viewed on JD Supra: October, 2010
- Most-viewed on JD Supra: September, 2010

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We start the new year with a new face on our management team: I'm very pleased to announce the appointment of Paula Ryplewski as Business Development Director at JD Supra.

Paula will direct our partnerships and sales programs. She joins us after many years of experience in sales, marketing, and business development directly within the legal profession.

Prior to arriving at JD Supra, Paula worked in business development at ALM publication The Recorder, a leading source of legal content (online and in print) in California.

Before The Recorder, Paula also served as sales coordinator at ALM, a provider of specialized business and news information whose brands include Law.com, The American Lawyer, Corporate Counsel, LegalTech, and the National Law Journal, among others.

She currently serves as president elect of the Bay Area chapter of the Legal Marketing Association.

Many of you will undoubtedly hear directly from Paula in the coming weeks as she settles in to her new duties at JD Supra - and Adrian has threatened to coax one or two blog posts out of her right here, on our Legal Marketing Scoop.

In the meantime, feel free to connect with Paula on Twitter and/or LinkedIn, and to read her excellent, occasional blog, The Message & The Method.

Please join me in welcoming Paula Ryplewski to the JD Supra Team!

Happy new year to all,
Aviva