July 2010 Client Bulletins

August 2, 2010

Authored by: Jeannie Osborne

President Signs Sweeping Financial Reform Bill:  What our Non-Bank Public Companies Need to Know Now

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act.  Included in the reform legislation — aimed primarily at the reform of financial institutions — are provisions that will apply to all publicly traded companies, including provisions relating to “say on pay” shareholder votes, proxy access, executive compensation disclosure and compensation committees.  For more information on these and other provisions of the Act, please see the Bulletin published by the Corporate Finance and Securities and Employee Benefits Client Service Groups on July 22, 2010.

Private Fund Investment Advisers Registration Act of 2010:  New Law Changes Regulatory Framework for Alternative Investment Managers

On July 21, 2010, President Obama signed into law the financial reform package known as the Dodd-Frank Wall Street Reform and Consumer Protection Act, which contains the Private Fund Investment Advisers Registration Act of 2010 (the “Private Fund Act”).  The Private Fund Act changes the regulatory framework that governs investment advisers managing private fund investments, including private equity funds, hedge funds and certain real estate funds.  For more information on the Private Fund Act, please see the client Alert published by the Alternative Investments Group on July 29, 2010.

Department of Labor Clarifies FMLA Definition of “Son or Daughter,” Confirming Benefit Eligibility of Non-Traditional Families

Under the Family and Medical Leave Act, eligible employees may take up to 12 weeks of job-protected leave upon the birth of a son or daughter, the placement of a son or daughter for adoption or foster care, or to care for a son or daughter with a serious health condition.  Pursuant to the statute, the term “son or daughter” not only includes children with whom a parent has a biological or legal relationship, but the children of individuals standing “in the place of a parent.”  For more information on the clarification of the definition of the term “son or daughter”, please see the client Alert published by the Labor & Employment Client Service Group on July 19, 2010.

D.C. Circuit Rejects Argument that Work-Product Protection is Waived by Disclosure to Independent Auditors

On Tuesday, June 29, 2010, the U.S. Court of Appeals for the District of Columbia held, in United States v. Deloitte LLP, that disclosure of attorney work product to an independent auditor does not waive work-product protection in certain circumstances.  Dow Chemical Company filed suit in 2005 challenging certain IRS adjustments to tax returns filed by partnerships owned by Dow and its subsidiaries.  As part of the litigation, the IRS sought to compel the production of documents from Dow’s independent auditor, Deloitte.  Dow claimed that the documents requested from Deloitte were protected from disclosure.   For more information on the ruling, please see the client Alert published by the Tax Advice and Controversy Client Service Group on July 7, 2010.

Tax Advantaged Ways to Utilize a Corporate Sponsored Charitable Organization

There are several tax and non-tax reasons to establish a corporate sponsored 501(c)(3) charitable organization.  Tax benefits generally include a current income tax deduction and avoidance of gain on a subsequent disposition of appreciated property.  Non-tax benefits include the publicity, goodwill, and marketing benefits associated with charitable giving, the ability to isolate charitable giving in a separate entity and strategically focus such charitable giving, and the ability to maintain consistent philanthropy by establishing an endowment.  For a discussion of less-utilized but uniquely tax-advantaged rules available to corporate sponsored charitable organizations, please see the client Alert published by the Tax-Exempt and Charitable Planning Team on July 15, 2010.

FDA:  Glaxo Must Stop Avandia Trial Enrollment, Inform Users of Risks

The FDA has told GlaxoSmithKline that it must stop enrolling individuals in its clinical trial for the drug Avandia, following a review of the drug by an FDA panel.  For more information on this and related news, please see the Bulletin published by the Food and Drug Administration Practice on July 23, 2010.

Coalition to Present Recommendations on FDA Oversight of Mobile Technologies Used in Health Care Applications

The potential for the increased us of mobile technologies in healthcare applications, and the corresponding uncertainty as to the FDA’s role in regulating these applications, has led to some stakeholders forming the mHealth Regulatory Coalition.  To read more about the Coalition and other news, please see the Bulletin published by the Food and Drug Administration Practice on July 27, 2010.

Democrats Introduce Safe Cosmetics Act of 2010

On July 21, 2010, three Democratic Members of the House of Representatives introduced the Safe Cosmetics Act of 2010, and Senator Dianne Feinstein is working to introduce similar legislation in the Senate.  For more information, please see the Bulletin published by the Food and Drug Administration Practice on July 26, 2010.

President Obama Urges Senate to Pass Food Safety Bill

On July 7, 2010, President Obama issued a statement in conjunction with the one-year anniversary of the Food Safety Working Group’s key findings on how to upgrade the food safety system.  To read more about the food safety bill and other news, please see the Bulletin published by the Food and Drug Administration Practice on July 12, 2010.

President Uses Recess Appointment for Berwick

President Obama used a recess appointment  to make Donald Berwick administrator of the Centers for Medicare and Medicaid Services, to the consternation of many Republications.  For more on this and other news, please see the Bulletin published by the Food and Drug Administration Practice on July 9, 2010.

FDA Advisory Committee:  Avandia Can Stay on the Market

Although an FDA advisory committee voted to keep Avandia on the market, consumer advocates and lawmakers have indicated that they remain concerned and are continuing to call for the drug’s removal from the market, a greater firewall between a drug’s approval and post-market safety studies, and increased monitoring.  For more information on this and other news, please see the Bulletin published by the Food and Drug Administration Practice on July 16, 2010.

Inaugural Issue of the Chemical and Pesticide News

For an update of legal and regulatory news regarding the manufacturing, distribution and sale of chemical and pesticide products, please see the Summer 2010 Issue of Chemical & Pesticide News published by the Environmental Practice.

EU Imposes Tough Sanctions on Iran Over its Nuclear Program

On July 26, 2010, the Council of the European Union issued a Decision mandating new unilateral sanctions on Iran that go beyond the UN-mandated Iranian sanctions aimed at discouraging Iran’s continued efforts to enrich uranium.  For a discussion of some of the key restrictions of these new EU sanctions, please the International Regulatory Bulletin published on July 30, 2010.

Export Control Developments:  How U.S. EAR Encryption Rule Change will Affect Re-Exporters in Asia

On June 25, 2010, the U.S. Bureau of Industry and Security published amendments to the encryption provisions of the Export Administration Regulations.  As the U.S. export regulation is extra-territorial, traders in Asia need to be up-to-date on the changes relating to the re-export of U.S. origin encryption items.  For a discussion of the key points contained  in these amendments, please see the Asia Trade Alert published by the International Trade Group on July 2, 2010.