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Evidence
Five Common Evidentiary Issues in Securities Fraud Actions Against Auditors and Accounting Firms, by
Scott B. Schreiber and Robert Alexander Schwartz.
Cases of securities fraud presenting
complex questions of fact involving the application
of GAAP and GAAS to unique modern
business operations are inherently challenging for
a jury of laymen. Counsel for the plaintiff has a
duty to use that practical reality to his or her client’s
advantage, within the confines of ethics.
Counsel for the auditor defendant should focus on ways to simplify the trial by eliminating confusing or prejudicial evidence from the jury’s consideration.
Non-Specific.
10 pages. Written:
2007. Added:
4-27-2008.
ALI-ABA
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e-Discovery
I Know About The Federal eDiscovery Rules, Now What About The States?, by
Renee T. Lawson.
The purpose of this Article is to provide an overview of the states’ distinctly un-uniform approach to eDiscovery in two respects: First, the state of the states’ rule-making efforts. Second, what the state courts are doing in the
real-world cases to fill the void created by the absence of
comprehensive state eDiscovery rules.
Non-Specific.
16 pages. Written:
2007. Added:
5-07-2008.
Renee T. Lawson
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Tax
Partnership Bankruptcy Tax Issues, by
Linda Z. Swartz.
The first part of this outline summarizes the state of the law with respect to general
tax issues that typically arise in connection with partner and partnership bankruptcies and restructurings. The balance of the
outline discusses tax issues that arise under Subchapter K when troubled partnerships are reorganized.
Federal.
94 pages. Written:
2007. Added:
4-04-2008.
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Corporate and Securities
Strong Inference, by
Gregory G. Ballard and Kathryn F. Shreeves.
The 9th Circuit has most directly confronted
the problem of competing, equally weighted
inferences. In Makor,
the 7th Circuit joined several other circuits
in rejecting the 2d Circuit’s “motive
and opportunity” test. 437 F.3d at 601;
Non-Specific.
2 pages. Written:
2007. Added:
4-04-2008.
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Commercial
Five Common Errors in Pleading Civil Rico Claims – And how to Avoid them, by
Edward F. Mannino.
This Article reviews five common errors in pleading Civil RICO claims, emphasizing
requirements under 18 U.S.C. 1962(c), which is the provision under which most Civil RICO claims are brought. In this Article we examine the requirements for pleading (1) a proper enterprise separate
from RICO person, (2) a pattern of racketeering activity & etc.
Non-Specific.
13 pages. Written:
2005. Added:
4-04-2008.
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Alternative Dispute Resolution
Five Steps to Maximizing Dollars when the Objective is Money, by
Jeffrey Krivis and Mariam Zadeh.
Like the Ball approach, this article synthesizes into Five Steps the intangible elements that factor into the defense perspective when arriving at a settlement. This is important. A key to settlement is having your adversary be your biggest
advocate with their client. Once this occurs,
you are on the road to success.
Non-Specific.
7 pages. Written:
2008. Added:
4-04-2008.
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Litigation Support
Legal Process Outsourcing of First Level Document Review, by
Dario Olivas and Michael Dolan.
Over the last several years, the proliferation in electronically stored information (ESI) and e-Discovery, such as email, instant messages, electronic documents and data on handheld devices, has drastically changed the litigation practice. This article explains the basics of first level document review, why to consider outsourcing this function.
Non-Specific.
5 pages. Written:
2007. Added:
3-02-2008.
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Ethics
Comprehending Judicial Behavioral Pathology, by
Sean L. Harrington.
Please Note: To view this article, click on the [Apr 2008] link after visiting the above URL. Abstract: Applying traditional risk assessment models in light of emerging research, this Essay contemplates the substantial ethical vulnerabilities and threats that accompany judicial appointments, occasionally leading to behavioral pathologies.
Non-Specific.
6 pages. Written:
2008. Added:
4-12-2008.
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Evidence
Recent Developments Affecting the Recovery of Attorneys Fees, by
Jane Bland, Ronald Lewis, Diana Marshall, Cory Galik.
Chapa clarifies that attorneys must segregate fees
based on the percentage of time spent on claims for
which fees are recoverable relative to non-recoverable
claims. This narrows the exception to the rule that
attorney’s fees are recoverable for work done on
claims that do not allow for fees if the claims involve
facts that are inextricably intertwined with facts that give rise to claims that allow fees.
Texas.
10 pages. Written:
2008. Added:
4-19-2008.
State Bar of Texas
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Business
An Overview of Issues and Cases Involving Business Torts in Texas Litigation, by
Fields Alexander.
An understanding of business torts is essential to
the Texas business litigator. This paper outlines key
information regarding the fundamental areas of
business torts including fraud, breaches of fiduciary
duties, and disputes over competition and the use of
competitive information.
Texas.
31 pages. Written:
2008. Added:
4-20-2008.
State Bar of Texas Litigation Update
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Corporate and Securities
Allegiance Telecom: The Fifth Circuit’s Recent Ruling on Class Certification in Securities Fraud Actions, by
Jonathan M. Hoff and Joshua R. Weiss.
For the second time in three months, the Fifth Circuit Court of Appeals has issued a decision that could dramatically affect the landscape for class certification in securities litigation. Plaintiff s typically attempt to demonstrate predominance by invocation of the presumption of reliance aff orded by the fraud-on-the-market theory.
Non-Specific.
6 pages. Written:
2007. Added:
4-04-2008.
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Legal Malpractice
Legal Malpractice for Litigators: An Update On Recent Developments In Texas Legal Malpractice, by
Jennifer Knauth, Steve Mcconnico and Robyn Hargrove.
The nature of claims available against attorneys continues to evolve. To protect themselves from potential liability, attorneys should make a point to stay up-to-date on malpractice law developments and changes in ethics and the Disciplinary Rules.
Texas.
25 pages. Written:
2008. Added:
4-20-2008.
State Bar of Texas
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Employment and Labor
A Legal Minefield, by
Richard Barratt.
Tips on legal issues involved in outsourcing, including employment issues, tax, intellectual property and contracting issues.
Non-Specific.
3 pages. Written:
2007. Added:
4-04-2008.
Venture Magazine
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Marital and Family
Child Support Demystified, by
Tracey A. Bloodsaw, Esq..
Article explains child support laws and dispels common myths, misconceptions and confusion.
New York.
1 pages. Written:
2007. Added:
4-27-2008.
Blog
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e-Discovery
In Search of Better E-Discovery Methods, by
H. Christopher Boehning and Daniel J. Toal.
As the burdens of e-discovery continue to mount, the search for a technological solution has only intensified. Litigants most commonly search repositories of electronic data for documents containing any number of defined search terms (keyword searches) or search terms appearing in a specified relation to one another (Boolean searches). Article discusses costs and benefits of new approaches: concept searching, clustering,taxonomies and ontologies and bayesian classifiers.
Non-Specific.
5 pages. Written:
2008. Added:
5-01-2008.
New York Law Journal
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e-Discovery
Taming the Beast – Implementation of Effective Best Practices for Electronic Data Discovery, by
Renee T. Lawson.
In this new environment all lawyers responsible for litigation – outside and in-house counsel alike – must be familiar not only with the law applicable to electronic discovery, but also with the particular electronic data landscape of the client whom they serve. This Article assists by setting out a proactive methodology for establishing electronic data “best practices” that enable an immediate, strategic and cost effective response in the inevitable trenches of electronic discovery.
Non-Specific.
32 pages. Written:
2006. Added:
5-06-2008.
Morgan Lewis & Bockius LLP
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Intellectual Property
New Views from the Internal Revenue Service on the International Use of Trademarks within a Corporate Group, by
William F. Colgin, Jr..
This paper discusses two points made in the regulations. The first point is that the IRS believes it can impute contractual terms if parties do not have appropriate contracts in place within the corporate group. Companies should seriously consider putting trademark licenses in place between related parties. The second point is that the IRS views the goodwill of the trademark as
something that can be treated as owned by the licensee of the trademark.
Non-Specific.
7 pages. Written:
2008. Added:
5-06-2008.
Morgan, Lewis & Bockius LLP
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Tax
Morgan Lewis Webcast: IRS Ruling Threatens Compensation Deductions for Public Companies, by
Dan Hogans, Lou Joseph & Mims Maynard Zabriskie.
Section 162(m) limits compensation deductions for
“covered employees” at public companies
• Pursuant to IRS Notice 2007-49, this currently means
the principal executive officer and up to three other
officers reported under the Securities Exchange Act of
1934 by reason of being among the three most highly
compensated officers of the company
Non-Specific.
16 pages. Written:
2008. Added:
5-06-2008.
Morgan Lewis
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Evidence
Bates Stamps' Days May Be Numbered, by
Tom O'Connor.
One of the most challenging problems facing litigation attorneys is how to work with the massive volume of digital documents produced during the discovery phase of a case. Attorneys and clients who focus on a document-based systems will save time and money and can conduct native file review. In today's world of vast quantities of electronic documents, the days of the Bates stamp are numbered.
Non-Specific.
3 pages. Written:
2008. Added:
5-06-2008.
Law Technology News
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Government
Crisis Management Responding to a Federal Investigation, by
Amy J. Conway-Hatcher.
This article describes Crisis management - Key considerations, Clues of a looming federal investigation, Crisis plans and internal investigations.
Federal.
18 pages. Written:
2008. Added:
5-07-2008.
Morgan Lewis
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Energy
Compliance Enforcement Developments, by
Stephen M. Spina.
• The office of enforcement (OE) has been very active on multiple fronts. The major developments involved OE investigations
of Amaranth and Energy Transfer Partners, as well as auditing compliance with FERC regulations.
Non-Specific.
17 pages. Written:
2008. Added:
5-07-2008.
Morgan Lewis
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Government
Dealing With Natural Gas Compliance Issues, by
Karol Lyn Newman.
Briefs about:
What are the most common natural gas
compliance issues today?
Those related to the Capacity Release Rules:
Shipper- M ust- Have-T itle
Buy/Sell Transactions
Roll-o vers of non-p osted capacity releases
Flips of non-p osted capacity releases
Tying arrangements
Non-Specific.
20 pages. Written:
2008. Added:
5-07-2008.
Morgan, Lewis & Bockius, LLP
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Antitrust
The Criminalization of Consumer Protection— A Brave New World for Defense Counsel, by
Barry J. Cutler.
Legal & ethical questions about advising clients regarding potential criminal exposure & use of Fifth Amendment privilege arise more frequently. This article describes some of these challenging questions and provides some practice tips for dealing with the criminal aspects of consumer protection law practice.
Federal.
6 pages. Written:
2007. Added:
4-02-2008.
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Civil Trial Practice
Mandamus Relief, Interlocutory Appeals, and Arbitration in Commercial Litigation, by
James R. Old, Jr. and Christopher B. Reed.
This paper will review the evolving mandamus standards in Texas courts. The paper will next review the legal regime governing interlocutory appeals and recent cases of commercial interest set in this procedural context. We conclude by examining the specific applications of these appellate procedures involving arbitration issues and
proceedings.
Texas.
20 pages. Written:
2008. Added:
4-20-2008.
24th Annual Litigation Update Institute
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Bankruptcy
Collective Bargaining Agreements and the Bankruptcy Code, by
Christopher Updike and Ingrid Bagby.
The article explains that, based on recent decisions, no damage claim arises from court-approved rejection of a collective bargaining agreement pursuant to Section 1113. Section 1113 of the Bankruptcy Code was enacted to address the treatment
of collective bargaining agreements when a company in such distress declares bankruptcy.
Federal.
23 pages. Written:
2008. Added:
4-03-2008.
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Litigation Support
FAQ: Electronically Stored Information, by
Herbert L. Roitblat.
Describes electronically stored information (ESI), how & where it is stored, how we measure it? Gives clarity on what backup tapes and parts of an email are. Briefs technologies that are used for search and retrieval in discovery of ESI.
ESI?
Non-Specific.
17 pages. Written:
2008. Added:
6-28-2008.
OrcaTec LLC
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Intellectual Property
Counterfeit Goods on Premises, by
Heather J. McDonald.
The article focuses on third party liability in the context of trademark counterfeiting. The
ultimate result, however, is perhaps the most beneficial - the potential for trademark owners to enforce their rights against a previously elusive target - illegal counterfeiters.
Non-Specific.
4 pages. Written:
2007. Added:
4-02-2008.
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Health Care
New Stark Law Regulations are Targeting Physician Compensation, by
Donna S. Clark and Kathleen P. Rubinstein.
New regulations aimed at tightening the prohibition against self-referral could necessitate the overhaul of many routine financial arrangements with physicians. Strategies for avoiding potential sanctions should include a comprehensive assessment of health care services involving physicians.
Non-Specific.
1 pages. Written:
2007. Added:
4-02-2008.
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Ethics
Avoiding Individual Liability: Be Right on the Law, Right on the Ethics, and Avoid Even the Appearance of Impropriety, by
Myra A. McDaniel, Denise Pierce, and Charles R. Kimbrough.
This paper focuses on issues relating to a civil suit brought against a public servant regarding official & individual liability; basic criminal misconduct issues that can arise in context of your public service; & civil reporting requirements regarding conflict of interest scenarios & criminal misconduct issues that can arise from those scenarios.
Non-Specific.
20 pages. Written:
2007. Added:
4-03-2008.
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Government
Municipal Regulation: Enforcement within the City Limits and in the ETJ, by
Patty L. Akers.
This paper provides an overview of the enforcement of municipal ordinances, regulating the ETJ and other miscellaneous statutory provisions that authorize municipal regulation in the ETJ.
Non-Specific.
6 pages. Written:
2007. Added:
4-03-2008.
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Government
Claims Against Government Entities, by
Cobby A. Caputo and Brad Young.
This paper explores some of the significant defenses available to governmental entities and their officers and employees under state and federal law.
Non-Specific.
8 pages. Written:
2007. Added:
4-03-2008.
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Government
Land Use and Economic Development Challenges Affecting City Government, by
Patty L. Akers and Brad Young.
Discussion of economic development tools that may assist cities in land use regulation.
Non-Specific.
10 pages. Written:
2006. Added:
4-03-2008.
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Corporate and Securities
Selected Enforcement Cases and Developments In the First Half of 2007 Regarding Broker-Dealers, by
Ben A. Indek, Michael S. Kraut, Matthew R. Kalinowski and Alice L. McCarthy.
In 2007, the SEC has been busy pursuing alleged insider traders; several of
those cases involve alleged improper trading and tipping by Wall Street professionals.
The Commission continued to bring cases in the mutual fund market timing, auction rate
securities, conflict of interest and best execution areas. Finally, the Commission has
als
Federal.
49 pages. Written:
2007. Added:
4-03-2008.
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Insurance
Choice of Entity for Insurance Agencies in Texas, by
John E. Gangstad.
Article discusses how to decide on the best form of business entity depending on the situation and concerns of the owner.
Texas.
5 pages. Written:
2005. Added:
4-03-2008.
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Tax
Circular 230 and Tax Shelters in 2007, by
Linda Z. Swartz and Jean Marie Bertrand.
Article gives an overview of:
· Disclosure requirements for participants in
“reportable transactions.”
· List-maintenance requirements for “material
advisors” with respect to reportable transactions.
· Disclosure requirements for “material advisors” with respect to transactions.
Federal.
70 pages. Written:
2007. Added:
4-04-2008.
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Bankruptcy
‘Coudert Brothers’: Court Limits Attorney’s Retaining Lien, by
John J. Rapisardi.
In the bankruptcy context, however the Coudert Brothers decision serves as a reminder of long-standing federal principle that courts must determine property rights in bankruptcy cases by applying state law, & differences among states’ laws can result in differences in outcome.
Federal.
2 pages. Written:
2008. Added:
4-03-2008.
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Real Estate
Do the HOA or Condo? Helping the Developer Decide, by
Steven L. Sugarman and Tracy L. Steele.
In developing common interest communities in Pennsylvania, developers frequently face a critical decision whether to create a planned community under the Uniform Planned Community Act, 68 Pa.C.S. 5101, et seq. (the “UPCA”) or a condominium regime under the
Uniform Condominium Act, 68 Pa.C.S. 3101, et seq. (the “UCA”). As a practitioner, you need to understand the similarities and differences between these two acts so you can best advise your developer clients on how to decide.
Non-Specific.
19 pages. Written:
2008. Added:
5-07-2008.
Morgan, Lewis & Bockius LLP
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Health Care
New York Declares War on Medicaid Fraud, by
Francis J. Serbaroli.
Much of our coverage has focused on the efforts of the Justice Department and the Office of Inspector General of the U.S. Department of Health & Human Services (OIG) to combat fraud in federal health care benefit programs such as Medicare. This column has only touched upon some of the
many areas for potential Medicaid fraud liability.
New York.
2 pages. Written:
2007. Added:
4-04-2008.
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Bankruptcy
‘El Toro’: A Red Flag on Lease Rejection Damages, by
John J. Rapisardi.
The U.S. Court of Appeals for the Ninth Circuit recently issued the first circuit-level decision regarding what sort of damages are subject to the cap imposed by Bankruptcy Code §502(b)(6) on landlords’ claims arising from a debtor’s rejection of a nonresidential real property lease.
Non-Specific.
2 pages. Written:
2007. Added:
4-04-2008.
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Insurance
Navigating the Insurance/Reinsurance Linked Securitisation Market: Charting New Paths; Political Tempests, by
Jeffrey S. Burman and Clifford H. Schoenberg.
This article describes some of recent advances in the ILS market as well as industry developments we expect to impact market in 2007 & beyond. The evolution of and innovation in the ILS market continues its rapid pace, with improved efficiency.
Non-Specific.
4 pages. Written:
2007. Added:
4-04-2008.
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Civil Pre-Trial
Impact of ‘Twombly’ on Notice Pleading, by
Jonathan M. Hoff and Martin L. Seidel.
It has been accepted that under the “liberal
pleading requirements” of the Federal Rules
of Civil Procedure, “a complaint should not
be dismissed…unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.”
Federal.
2 pages. Written:
2007. Added:
4-04-2008.
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e-Discovery
Navigating the Rising Tide of E-discovery, by
David Williams, April Oliver, and Geoffrey Gettinger.
Article discusses some of the myriad issues and complexities of the topic and some general practices to consider.
Non-Specific.
8 pages. Written:
2007. Added:
4-04-2008.
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e-Discovery
MSG Is Bad For You!, by
Ralph Losey.
Interesting discussion between Ralph Losey and Craig Ball regarding the relative merits of working with email in PST or MSG formats, and whether MSG meets the definition of native file format under the FRCP.
Federal.
3 pages. Written:
2008. Added:
4-04-2008.
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Bankruptcy
Taming Mandatory Subordination Under 510(b), by
Ingrid Bagby and Christopher Updike.
In Chapter 11bankruptcy cases, equityholders of the debtor often do not review any meaningful distribution under a plan of reorganization. The Bankruptcy Code sets forth an extensive priority scheme that places stockholders at the end of the queue.
Federal.
5 pages. Written:
2007. Added:
4-04-2008.
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Banking and Finance
Direct Creditor Claim for Breach of Fiduciary Duty Nixed, by
John J. Rapisardi
.
Together, the Delaware Supreme Court’s decision in Gheewalla and the Chancery Court’s decision in Trenwick each appear to reinforce the principle that the business judgment rule continues to shield good
faith business decisions of directors regardless of the financial state of the corporation.
Non-Specific.
2 pages. Written:
2007. Added:
4-04-2008.
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Business
Should You Sue Over A Term Sheet?, by
Gregory G. Ballard and Jessica Lively.
When negotiations break down between term sheet and contract, you might need to litigate. The range of circumstances in which parties find it useful to prepare a preliminary document memorializing their common goals before they execute a final full-scale contract is limitless.
Non-Specific.
14 pages. Written:
2007. Added:
4-04-2008.
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Bankruptcy
Attorneys’ Fees Preserved In Bankruptcy Cases, by
John H. Bae and Philip John Nichols.
This article discusses the development
of the Fobian rule and other courts’
treatment of it. The article also summarizes
the Supreme Court’s reasoning in abrogating
the Fobian rule in Travelers.
Federal.
2 pages. Written:
2007. Added:
4-04-2008.
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Bankruptcy
‘Vita’: The Split Over the Indifferent Creditor Class Widens, by
John J. Rapisardi.
In light of the uncertainty imposed by this judicial conflict, there are certain practical steps that a debtor’s counsel may take to reduce the risk that voter apathy will require a debtor to seek confirmation under the Bankruptcy Code’s “cram down” provisions
and potentially doom an otherwise confirmable plan.
Federal.
2 pages. Written:
2008. Added:
4-03-2008.
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Construction
Taming the Trap for the Unwary: Securing Mechanics' & Materialmen's Liens In the State of Texas, by
Matthew C. Ryan.
The mechanics’ and materialmen’s lien, as created by the Chapter 53 of the Texas Property Code and the Texas Constitution, creates a very powerful tool for getting the
attention of those who own property (and/or withhold payments) on construction projects in this state. Chapter 53 of the Property Code also features some important
protections for property owners and puts some “bite” into the penalties for those who make improper claims.
Texas.
25 pages. Written:
2006. Added:
5-12-2008.
Lorman Education Services
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Insurance
Internal Revenue Code Section 409A: Ten Traps for the Unwary, by
Daniel L. Hogans and Michael J. Collins.
This article highlights ten key items that should be considered in drafting or amending plans and other agreements in light of the complex rules under tax code Section 409A that apply to most nonqualified deferred compensation arrangements. The authors divide these
‘‘traps for the unwary’’ into two broad categories: problems that arise in distinguishing what is and what is not deferred compensation subject to Section 409A and problems that arise in documenting compliance with Section 409A.
Non-Specific.
6 pages. Written:
2008. Added:
5-07-2008.
The Bureau of National Affairs, Inc.
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