September 2009 Client Alerts

October 5, 2009

Authored by: Bryan Cave

EPA Finalizes Mandatory Reporting Rule for Greenhouse Gas Emissions

Approximately 10,000 facilities must begin monitoring greenhouse gas (“GHG”) emissions pursuant to federal law beginning on January 1, 2010. On September 22, 2009, the U.S. EPA issued its final rule to require mandatory reporting of GHG emissions within nearly all sectors of the economy. This rule was developed in response to a Congressional mandate and provides the first comprehensive national system for reporting emissions of carbon dioxide and other GHG emission sources in the United States. EPA announced its proposed rule on March 10, 2009.

For more information, please read the client alert published by Bryan Cave LLP’s Environmental Client Service Group on September 29, 2009.

FDIC Issues Final Statement of Policy on Investor Qualifications for Failed Bank Acquisitions

On July 2, 2009, the Board of Directors of the Federal Deposit Insurance Corporation issued for public comment a proposed Statement of Policy that sets forth the qualifications for private equity investors in failed bank acquisitions.

For more information, please read the client alert published by Bryan Cave LLP’s Financial Institutions Client Service Group on September 24, 2009.

District of Columbia’s Highest Local Court Allows Consumers Who Never Purchased a Product or Service to Sue for Violation of the District’s Consumer Protection Act

Large retailers and providers of services to consumers will not be happy with the outcome of a September 17, 2009 ruling of the District of Columbia’s highest local court, the D.C. Court of Appeals. The Court ruled that any member of the public can sue retailers or service providers, on behalf of the “general public”, to enforce the D.C. Consumer Protection Procedures Act (D.C. Code Section 28-3901 et seq.), even if the plaintiff never purchased or used the product or service.

For more information, please read the client alert published by Bryan Cave LLP’s Consumer Protection Client Service Group on September 23, 2009.

IRS Issues New Model 402(f) Notices

Earlier this month, the Department of Treasury and Internal Revenue Service issued Notice 2009-68, which includes new safe harbor language for the rollover explanations required under Section 402(f) of the Internal Revenue Code.

For more information, please read the client alert published by Bryan Cave LLP’s Employee Benefits & Executive Compensation Client Service Group on September 18, 2009.

Guidance for REMIC Mortgage Modifications

The typical structure for the securitization of commercial real estate loans is a real estate mortgage investment conduit (“REMIC”). There are numerous technical requirements to qualify as a REMIC and those rules can be adversely affected where a mortgage is modified or a lien is released in whole or in part.

For more information, please read the client alert published by Bryan Cave LLP’s Tax Advice and Controversy Client Service Group on September 18, 2009.

Recent EEOC Lawsuits Remind Employers to Act With Caution In ADA Situations

The Equal Employment Opportunity Commission (EEOC) has filed two lawsuits in the past two months that indicate the Commission is taking an aggressive stance on Americans with Disabilities Act (ADA) issues. The EEOC chooses relatively few lawsuits to pursue on its own, making their choices highly instructive for employers to avoid the risk of an EEOC investigation. While it remains to be seen how the courts will view the EEOC’s arguments, employers should consider the EEOC’s current arguments in making employee decisions.

For more information, please read the client alert published by Bryan Cave LLP’s Labor & Employment Client Service Group on September 17, 2009.

Significant Amendments to the New York Labor Law

The New York Labor Law has been amended to require notification of employee pay, to shift the burden for establishing liquidated damages, and to raise certain available penalties.

For more information, please read the client alert published by Bryan Cave LLP’s Labor & Employment Client Service Group on September 15, 2009.

New Guidance Regarding the Use of the ITAR’s “Miscellaneous” USML Category

The State Department has announced that applicants for licenses to export defense articles may no longer use the “miscellaneous” U.S. Munitions List (“USML”) Category XXI when identifying the classification status of defense articles to be exported unless the applicant also provides:

1. A copy of a Commodity Jurisdiction determination identifying the articles as controlled under Category XXI; or

2. A letter from the Director, Office of Defense Trade Controls Policy, Directorate of Defense Trade Controls granting the exporter permission to classify the articles under Category XXI.

For more information, please read the client alert published by Bryan Cave LLP’s International Trade Client Service Group on September 14, 2009.

OFAC Issues General License for Certain Goods to the Specified Areas of Sudan

The Office of Foreign Asset Control has revised its Sudan regulations to provide for a general license to export and reexport agricultural commodities, medicine and medical devices to Specified Areas of Sudan.

For more information, please read the client alert published by Bryan Cave LLP’s International Trade Client Service Group on September 10, 2009.

Federal Circuit Adopts Standard of Clear and Convincing Evidence of Subjective Intent to Deceive for Trademark Fraud Claims

Since the U.S. Trademark Trial and Appeal Board’s 2003 decision in Medinol, claims of fraud have become very powerful tools to support cancellation of third party trademark registrations. Medinol v. Neuro Vasx, Inc., 67 USPQ2d 1205 (T.T.A.B. 2003). The Federal Circuit’s August 31, 2009 ruling In Re Bose Corporation, Case Number 2008-1448 will make it far more difficult for defendants to successfully use fraud claims to cancel a trademark registration.

For more information, please read the client alert published by Bryan Cave LLP’s Intellectual Property Client Service Group on September 3, 2009.