Ice Miller LLP

The Internal Revenue Service has announced in a notice in the Federal Register (77 FR 3202) that it will hold a public hearing in Washington, D.C. on June 5, 2012, to discuss proposed regulations relating to the determination of governmental plan status. The proposed regulations were previously published in the Federal Register on Nov. 8, 2011, (our Nov. 7, 2011, bulletin regarding the proposed regulations can be found here). Outlines of the topics to be discussed at the public hearing must be received by Feb. 6, 2012.

If you have any questions or need additional information regarding the public hearing and how the proposed rulemaking may impact your governmental plan, please contact Mary Beth Braitman, Terry A.M. Mumford, Katrina Clingerman, Lisa Harrison or your Ice Miller Employee Benefits attorney.

Ice Miller is proud to have joined so many others last week in Indianapolis to show support for the National FFA and its student leaders. Ice Miller's relationship with FFA began just four years ago, but our commitment to its mission and efforts is deep. We judged outstanding student competitions - including the Star in Ag Placement and the Diversified Livestock Entrepreneurship proficiency. We led workshops on the Farm Bill and how to pursue advanced studies and even a career in law. And, we hosted many of the other industry partners who share our commitment to these talented students.

It is the very positive impression made through National officer visits and other meetings with so many FFA members that has pushed us to do more for FFA. Consider just a few of the talented officers we have met:

• Paul Moya was an '08/'09 National President and is finishing his degree at Notre Dame and considering a career in law;

• Riley Branch is another '08/'09 National officer who is in his first year at Texas Tech Law School; and

• Alex Henry was a National officer last year who shared her career goal of someday becoming the Secretary of Agriculture.  

The efforts and aspirations of so many other FFA officers and members clearly deserve recognition as well. I mention these three because they have inspired Ice Miller to help FFA develop the next generation of talented leaders who will become lawyers, business executives, policy makers and government leaders. 

Today's food and agriculture industries continue to develop and refine complex strategies to address market, business and weather related risks. Increasingly, though, the industry is challenged with burdensome policy and regulations that pose a significant threat. As this trend is likely to continue, our future leaders need to develop the tools today to critically evaluate these issues and to learn how to deal with and, where possible, shape them.

At Ice Miller, we remain committed to helping open these young minds. We do this by relaying the importance of basic legal services, such as business or farm estate planning or intellectual property protection – many of their own successful start-up businesses could already use these services ... by debating the merits of today's farm subsidies with them and brainstorming new policy ideas for their future ... and by candidly sharing what it takes to get through law school and what to do with that degree once you have it!  

In a time when our overall jobs and employment outlook remains quite challenging, it is refreshing to think of the immense opportunities for young people in agriculture. The students of the FFA will be a part of an agriculture industry that will feed the 7 billion people on our planet, improve human health, create new sources of energy and help care for our planet's environment. Ice Miller is extremely proud to support this great organization and its talented young leaders. 

I had the distinct privilege of moderating a Farm Bill Listening Session hosted  recently by Senator Richard Lugar and Congressman Marlin Stutzman in Fort Wayne.  The event had over 125 attendees with a variety of personal and policy interests represented - there were farmers, conservationists, hunger and nutrition advocates, home builders, rural and agribusiness leaders, engaged citizens and lots of press!

Both Lugar and Stutzman come from farming, both serve on their respective chamber's Agriculture Committee, and well understand its importance, the challenges it faces and the complexity of a farm bill process.  Both remarked on the critical timing agriculture faces in relationship to the work of the House-Senate debt reduction committee.  While Congress typically takes many months to study, debate, argue, and ultimately renew a farm bill, it was Lugar who candidly told the audience that the Farm Bill could be done in a matter of weeks ahead of the debt committee's deadline this Fall for budget cut recommendations.  Because of the time crunch, the 12-member panel “might make decisions about agriculture that are not formulated by the ag committees in the House or the Senate, that are not informed by listening and speaking to groups such as this one,” said Lugar.

The two political leaders were largely in agreement on agriculture policy and related topics that were raised or questioned by audience members.  Both preferred federal “safety net” insurance over direct subsidies as a way to protect producers against drops in commodity prices.  Both supported an examination of nutrition and feeding programs to consider their reform rather than simply "tweaking" eligibility requirements.  Stutzman favored ending federal aid for ethanol production. Lugar endorsed the ethanol blender tax credit to encourage development of the fuel made from corn.  Both supported the passage of pending free trade agreements with South Korea, Colombia and Panama.

The session was notable in two important ways - first, it was well structured to allow every attendee to ask a question or offer an opinion.  Both members' staff deserve compliments for not turning the event into a "hearing" with select witnesses and testimony.  Second, both Lugar and Stutzman offered very genuine and straight-forward responses to all the questions and topics raised - an approach the attendees seemed to really appreciate.

My opening comments that provided some "Farm Bill 101" for the audience are provided below.

"We are here today to hear from both Senator Richard Lugar and Congressman Marlin Stutzman of this 3rd district on the status, priorities, and even political dynamics surrounding the development of our next Farm Bill. Both will be intimately involved in this process – serving respectively on the Senate and House Agriculture Committees.

And you are an important part of today’s time together – both are expecting to hear your comments and perspectives on the Farm Bill – I hope you have come ready with opinions (probably strongly held ones!), comments and questions.

Before I introduce these two gentlemen to you, I’d like to share a little background and history with you on the Farm Bill and the process we go through to put new ones in place…

• 16 farm bills have been enacted in our nation’s history – the first in 1933 and the most recent 2008;
• Each bill is comprised of titles (similar to "chapters") – in 1996 there were 9 titles, 2002 there were 10 and our current bill has 15;
• The 2008 Farm Bill on average costs or provides outlays EACH YEAR of approximately $60 billion. Nearly 80 percent of this Farm Bill spending goes toward nutrition and domestic feeding programs;
• Two primary committees are involved – the House and Senate Agriculture Committees – but so are a number of others today because of the breadth of programs encompassed in this bill – including Foreign Relations/Foreign Affairs, Environment, Food Safety, Ways and Means/Finance. And that doesn’t even include the all important budget and appropriation committees who are squarely focused on the spending aspects;
• The Senate Ag Committee has 21 members (11 Ds/10 Rs); the House Ag Committee has 46 members (26 Rs/20 Ds), but 23 are new members. Other influencers are the Executive Branch (the White House and USDA) as well as a GROWING number of advocacy groups – they range from farm to hunger to environmental to rural to trade to research to consumer groups.
  

Every Farm Bill’s outcome is influenced by several common factors such as the state of the farm economy, the politics of the day, the strength of the lobbies involved, the structure/demographics of US agriculture, and always the budget.

Today, the budget crisis, the fragile U.S. – and European – economies, and the tremendous acrimony and gridlock in Washington will be key drivers of this process.

And, all of these, unfortunately, come at a time when today’s agriculture is challenged by levels of market volatility never before experienced, is threatened by increasing regulations and lawsuits, is "misunderstood" by a growing segment of our non-farm or rural friends and neighbors, and is expected to remain competitive and productive in global markets so we can help meet the challenge of feeding the 9 billion people on this planet in the next 50 years.

Now is a time when agriculture – and every other interest – admittedly must rise to the occasion and contribute to a solution to this budget situation. However, as we all begin today’s conversation, let’s collectively not lose sight of the critical need for GOOD, SMART and FORWARD LOOKING PUBLIC POLICY – and that means farm, rural, environmental, nutrition, trade, infrastructure, energy, and food safety policy to name a few.

Senator Lugar, Cong. Stutzman and their colleagues have a Herculean task ahead of them – it is our responsibility to participate, engage and offer input to this process too. And, that is why we are here today – thank you again for coming."

I had the great opportunity yesterday to spend the day with nearly 50 outstanding young farmers from all across the country participating in FFA's New Century Farmer Program.  These young leaders are spending an entire week together learning about the challenges they will face in the coming decades and how to remain successful.   The program introduces participants to the latest developments in agricultural technology, helps them to form relationships with top industry professionals, encourages them to engage in agricultural policy and helps them create a vision for their future goals and farm operations.

I led a session on food and agricultural policy that was followed by intensive group discussion on this group's thoughts on the upcoming Farm Bill.  We began with an overview of what food and agricultural policy is and government's role in formulating it.  The group was very interested in how federal farm policy is formulated, who are the players involved and what considerations go into crafting each Farm Bill (i.e., the state of the farm economy, the structure of agriculture, the size of the federal budget deficit, etc.).

This discussion was part of a larger process FFA is undertaking this year to provide input on the coming Farm Bill to U.S. Department of Agriculture Secretary Tom Vilsack.  Secretary Vilsack challenged the FFA student leadership last Fall to engage in the Farm Bill deliberations and share their unique perspectives as the future leaders of U.S. agriculture.

Ice Miller is a proud to represent the interests of the National FFA and be a sponsor of their student leadership programs.  We look forward to engaging with these talented young people through what will surely be long and successful careers.

EPA published its final biomass permitting deferral today (EPA released the final rule informally July 1 (128 DEN A-13, 7/5/11) exempting new and modified facilities that burn wood waste and some landfills from the need to obtain greenhouse gas emissions permits for three years.  BNA reports EPA is taking this action as part of the process of granting the Petition for Reconsideration filed by the National Alliance of Forest Owners (NAFO) on August 3, 2010, related to the PSD and Title V Greenhouse Gas Tailoring Rule as the agency conducts further studies of greenhouse gas emissions from biomass such as wood, various crop residues, and grass. The final rule, which amends 40 C.F.R. Parts 51, 52, 70, and 71, exempts those facilities from the requirement to obtain prevention of significant deterioration permits and Title V operating permits for their greenhouse gas emissions.

Beth Bechdol and I participated in Farm Journal's Top Producer Summer Seminar in Moline, Ill on June 7-8, 2011. The audience of 130 was mostly commercial, full-time farmers from across the country (mostly from the Midwest).

I led a breakout session on agricultural legal "pitfalls" and focused primarily on critical environmental regulatory issues for agriculture. I also spent time describing more positive opportunities for producers with on-farm alternative energy projects, including wind, solar, biomass and others. The PowerPoint presentation from the session is available below for reference.  The discussion on enhanced regulatory scrutiny of the agriculture industry was timely, as news sources reported today that Nebraska Senator Mike Johanns, speaking on the floor of the U.S. Senate, has questioned the sincerity of the Environmental Protection Agency over a campaign the Senator is calling EPA's "Charm Offensive." According to Johanns, as reported by Hoosier Ag Today, "the problem is what the EPA is selling publicly to farmers and ranchers just doesn't match up with reality. They say one thing on the road while the regulatory train just continues to barrel forward in Washington."

The overall themes of the conference sessions centered on how farmers should plan for the future - whether it be in business management, risk management, commodity marketing, access to credit and financing, regulatory compliance, or estate and succession planning. It was clear from our conversations with producers that estate planning and corporate and tax restructuring are front of mind and can be seen as overwhelming efforts. This is something we hear frequently from our clients as well. For more details please visit the firm's farm restructuring and estate planning services web site.

We look forward to being a part of future Farm Journal events and conferences. After 135 years of providing quality information to farmers, they clearly know and appreciate the issues most critical to success in farming.

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Green Initiatives

Kristina Tridico, partner and member of the agricultural law team at Ice Miller LLP, authored this blog.

Beth Bechdol and I participated in Farm Journal's Top Producer Summer Seminar in Moline, Ill on June 7-8, 2011. The audience of 130 was mostly commercial, full-time farmers from across the country (mostly from the Midwest).

I led a breakout session on agricultural legal "pitfalls" and focused primarily on critical environmental regulatory issues for agriculture. I also spent time describing more positive opportunities for producers with on-farm alternative energy projects, including wind, solar, biomass and others. The PowerPoint presentation from the session is available below for reference.  The discussion on enhanced regulatory scrutiny of the agriculture industry was timely, as news sources reported today that Nebraska Senator Mike Johanns, speaking on the floor of the U.S. Senate, has questioned the sincerity of the Environmental Protection Agency over a campaign the Senator is calling EPA's "Charm Offensive." According to Johanns, as reported by Hoosier Ag Today, "the problem is what the EPA is selling publicly to farmers and ranchers just doesn't match up with reality. They say one thing on the road while the regulatory train just continues to barrel forward in Washington."

The overall themes of the conference sessions centered on how farmers should plan for the future - whether it be in business management, risk management, commodity marketing, access to credit and financing, regulatory compliance, or estate and succession planning. It was clear from our conversations with producers that estate planning and corporate and tax restructuring are front of mind and can be seen as overwhelming efforts. This is something we hear frequently from our clients as well. For more details please visit the firm's farm restructuring and estate planning services web site.

We look forward to being a part of future Farm Journal events and conferences. After 135 years of providing quality information to farmers, they clearly know and appreciate the issues most critical to success in farming.

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Agribusiness

Agricultural Law

I have had the privilege the last two years to serve on the Steering Committee for the Indiana Humanities Council's (IHC) Food for Thought Initiative. IHC has convened an enthusiastic and diverse group of partners to develop the multi-year Food for Thought Initiative. They recognized that the need for food links all of us, but the food we eat, the way we grow, prepare and eat it, our mealtime rituals, traditions and conversations…all of these elements distinguish us as cultures and individuals.

Food for Thought is an examination and celebration of the ways food helps to define Indiana’s culture, considering food in the context of history, law, politics, science, the arts, religion, ethnicity and our place in the world. Through this program, Hoosiers have shared and sampled the cultures reflected at the state’s table and addressed the local and global issues of hunger, nutrition, food production, obesity, food security and safety.

There have been numerous events connected to Food for Thought, including a one-night community conversation about food and ethnic identity called Chew on This. More than 150 people met at one of nine locally-owned restaurants for the fun evening full of diverse views and opinions. Last Fall, IHC joined with Spirit and Place and several sponsors including Ice Miller and hosted an evening conversation with internationally recognized chefs, Anthony Bourdain and Eric Ripert.

There also is a traveling exhibit designed to engage and educate Hoosiers about global and local food issues, increase awareness about Indiana’s rich agricultural history and stimulate conversation among families and communities. The exhibit will be traveling across the state this summer and is well worth the visit. The summer schedule is below.

June 4 - 19: Randolph County Convention & Visitors Bureau, Winchester

July 19 - Aug. 3: Knox County Public Library, Vincennes

Aug. 5 - 21: Indiana State Fair, Indianapolis

Aug. 30 - Sept. 8: West Lafayette Public Library, West Lafayette

Sept. 10 - Oct. 2: Evansville-Vanderburgh Public Library, Evansville

At a time when there is much debate over the "right kind" of food or the "right kind" of agriculture, IHC has motivated Hoosiers to think about ALL kinds of food and agriculture. There's a lot more "food for thought" on IHC's website at http://www.indianahumanities.org/foodforthought/.

Over the years, the interest in agritourism has grown. The popularity of farmers' markets is high. Families look for activities which are educational and entertaining, many of which include visits to farms and ranches. Further, with the continued focus on exercise, outdoor activities such as hiking and trail riding are popular. However, although the interest in these activities is generally viewed favorably, the increased number of participants, many of whom are inexperienced, means an increase in the potential liability to the providers of these agritourism activities. Starting this summer, agritourism providers can now take a few simple steps to limit the potential liability they may face from the inherent risks of agritourism activities. In Indiana Code Section 34-31-9, effective July 1, 2011, the Indiana General Assembly created a safe haven for agritourism providers who provide a statutory warning to participants and meet other specific requirements

The protections provided by this new statute apply not only to traditional activities at agricultural, horticultural, or agribusinesss operations where the general public is allowed or invited to participate in, view or enjoy the activities for recreational, entertainment, or educational purposes and animal exhibitions at an agricultural fair, but also to a broader range of natural resource based activities and attractions. Ind. Code Section 34-31-9-2(1)(2)(3). Essentially, the statute limits liability which may arise from the "inherent risks of agritourism activities." In the statute, inherent risks are defined as "those conditions, dangers, or hazards that are an integral part of an agritourism activity." Ind. Code Section 34-31-9-4.

In order to fall within the safe haven created by the statute, a warning sign must be posted which includes specific language about the potential risks. The sign must be visible from the main entrance and contain lettering of a specific size. Alternatively, all participants can sign a release containing the same warning language. If all of the statutory requirements are met, then a participant or his/her representative cannot make a claim for injury, loss, damage or death, caused by the inherent risks of an agritourism activity. However, as with any statute, there are exceptions and exclusions. For instance, this statute does not limit liability for injuries caused by improperly trained employees or due to a known dangerous condition on the land which is unknown by the participant.

So if you operate a pumpkin patch, have land with hiking trails or may be otherwise involved with agrotourism, you will want to take the steps needed to meet the requirements of this statute so that your business can take advantage of all of the protections which it affords. Further, you should also be prepared to address the exceptions - through well documented training sessions of employees, discussions of potential risks with participants, and other steps.

Ice Miller's agricultural law group monitors this and other similar issues for clients in the food and agricultural industries. View our full list of services at our agribusiness website. If you would like to further discuss this new statute or how to implement these statutory protections, please contact Judy Okenfuss at judy.okenfuss@icemiller.com or (317) 236-2115.

Anthony Aaron, partner and member of the agricultural law team at Ice Miller LLP, authored this blog.

By the year 2050, experts predict that the world's population will grow to over nine billion people and we will need to double food production. At the same time, many American consumers, particularly "early adopters" (thought and opinion leaders who seek information and frequently drive change) seem concerned that modern agriculture is not "farming" and express their preference for food produced locally, by organic methods or by other means that are not sufficiently scalable to feed the world.

On May 9 and 10, I attended the Center for Food Integrity's North American Strategy Conference on Animal Agriculture at Hamburger University in Oak Brook, Illinois. The conference brought together a group of organizations and companies who engaged with consumers, reporters and "mommy bloggers" to better understand their perspectives and how to bridge the gap. Many of the panelists were "early adopters" on food issues and expressed their preference for local or organic foods and for shopping at Whole Foods or farmer's market – in other words, food sources that many would not equate with "modern agriculture." At the same time, several panelists expressed a desire to feel a connection with their food by getting to know the producer personally at a farmers market, by having a garden or even visiting a farm.

Charlie Arnott, the CEO of Center for Food Integrity (CFI), also reviewed some of CFI's research on the attitudes of early adopters toward the food system. One of CFI's findings that left me deeply puzzled is that only half of early adopters are "very concerned" with having enough food to feed the U.S. and only 31 percent are "very concerned" with having enough food to feed the developing world. Yet, with the world's population headed to nine billion by 2050, and needing to double food production in the same time frame, we are faced with a choice of whether or not to produce enough to feed the world – and if we choose not to, the consequences could be dire.

The closing speaker was Ted McKinney, Elanco Animal Health's Senior Director of Global Corporate Affairs. He described affordable food, food choice and sustainable global food production as three rights that must be recognized in order to make the dream of providing nine billion people with safe, affordable and abundant food a reality. So, it seems that our challenge is to convince policymakers and consumers that we need to produce enough food to feed the world, while preserving consumer's right to choose the foods that fit their lifestyles and means. As Vanessa Druckman, one of the blogger panelists, put it, "We need to find food selections that work for the entire world, not just people like me who can choose to buy organic and grass-fed."

Ice Miller is a proud sponsor of many CFI events and routinely participates in its conferences to stay abreast of its research and information, as well as other research, information and policies affecting agriculture and agribusinesses. If you're interested in seeing more of the conference discussion, check out #CFI11 on Twitter.

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Agribusiness

Agribusiness Law

Jennifer Johnson, associate in the business litigation group with a focus on product liability at Ice Miller LLP, authored this blog.

Last week I attended the Association of Equipment Manufacturer's Product Liability seminar in Bloomingdale, Ill. The seminar focused on how technical personnel and corporate representatives of equipment manufacturing companies and outside counsel can work together during litigation proceedings for effective litigation tactics and strategies. The topics ranged from coordinating litigation on a national scale to the important role corporate representatives can take in alternative dispute resolution. Some of the key themes which emerged are:

• The importance of a well-organized litigation program at the corporate level. One speaker highlighted the challenges emerging from cooperation and organization of the plaintiffs' bar. For example, many plaintiff's attorneys' associations maintain forums on specific products where the attorneys can share common claims involving a product, document libraries where attorneys can share successful pleadings, and deposition repositories that attorneys can use to research a corporate representative in a matter. In order to combat this cooperation by the plaintiffs' bar, manufacturers need to coordinate their litigation on a company level to ensure that the manufacturer's discovery responses and other pleadings do not contradict those filed in cases in other jurisdictions. The plaintiff's attorneys are sharing these documents and will use them to surprise a corporate representative at deposition or trial. Manufacturers typically accomplish such coordination by employing internal litigation managers or product specialists, or by employing national counsel.
• Recent changes to the Federal Rules of Civil Procedure may benefit manufacturers, specifically changes to Federal Rule of Civil Procedure 26, which governs expert witness discovery. The new version of Rule 26 will provide more protection to communications between counsel and a testifying expert witness. The most relevant changes include that draft expert reports and communications relating to an expert's opinions will no longer be discoverable by the other side.
• Deposition preparation should begin early in a matter. This perspective highlights the importance of, an incident reporting network. After an initial meeting with counsel, the corporate representative should learn why he or she was selected to serve as corporate representative, whether there are any deadlines he or she needs to be aware of, the time frame in which the deposition is likely to occur, and the number of documents that the attorney anticipates the corporate representative will need to review. After this meeting, the corporate representative should have a good sense of whether he is the right witness. If so, the representative should expect to meet with counsel at least one more time where the "nitty gritty" details of the case will be discussed. Corporate representatives should be proactive in preparing for depositions and should not hesitate to contact counsel with questions or concerns.
• One speaker noted that it should not be the objective of the corporate representative to "win" the deposition or trial. Rather, their demeanor should reflect that they are trying to be helpful by educating the jury and/or opposing counsel. Thus, it is important to use basic terms that anyone can understand and to maintain a calm presence in front of the jury or, in the case of a videotaped deposition, the videographer.

Ice Miller represents a number of clients on product liability matters, including those in the agricultural and construction equipment industries. For help or more information about how Ice Miller can assist your business with additional background on the litigation process and the important role corporate representatives and technical personnel play in it, please contact Jim Petersen, Judy Okenfuss, or Jen Johnson.

Post Tags: Agribusiness, Agriculture Law, Product Liability, AEM Conference 2011.

On April 14, 2011, the IRS issued Notice 2011-38 to announce an extension of the voluntary pilot program that allowed a plan administrator to truncate an individual payee's nine-digit identifying number on paper Forms 1099-R (including substitute and composite substitute statements) issued for calendar years 2009 and 2010.  The original pilot program was announced in Notice 2009-93 and you can read our summary on the original pilot program here. In order to allow for more time to evaluate the pilot program, the IRS has extended the program as to paper Forms 1099-R furnished for calendar years 2011 and 2012. As in the prior announcement, Notice 2011-38 does not apply to forms filed with the IRS, electronically furnished payee statements, and payee statements not in the Form 1098, 1099, or 5498 series (such as a Form W-2).

Read the entire alert about the IRS Pilot Program.

In previous articles in this space, we have suggested that employers should review their employment handbooks for rules and policies that may be found unlawful under the National Labor Relations Act (Act). On March 31, the National Labor Relations Board (Board) issued another such reminder to us all.

Read about the National Labor Relations Board policy.

Companies Know About Data Security Problems, But Fail to Address Them

A newly published study of corporate data security policies has revealed that the majority of corporate technology executives have little knowledge of and control over sensitive data leaving their organization and have ignored the need for enhanced data security controls, even in the wake of large-scale data security breaches making national headlines.

Read the entire data security and privacy concerns article.

Ice Miller LLP announced today, April 5, that Beth Bechdol has been elected to the Board of Directors of the National Grain and Feed Association (NGFA). The organization elected 18 industry leaders to serve on its 58-member board of directors during the organization's 115th annual conference in San Diego, Calif.

Read the entire announcement.

On March 18, 2011, the Department of Labor (DOL) issued Technical Release 2011-01 (2011 Technical Release) to provide an extension of the non-enforcement period relating to certain interim procedures for internal claims and appeals under the Patient Protection and Affordable Care Act (PPACA). The Technical Release serves to extend and modify the original non-enforcement period that was provided under Technical Release 2010-02 (2010 Technical Release), issued by the DOL on Sept. 20, 2010. The 2011 Technical Release gives employers that sponsor non-grandfathered group health plans yet more time to comply with PPACA's requirement to have an effective internal claims and appeals process, which is generally effective for plan years beginning on or after Sept. 23, 2010.

Read the entire article on the extended delay in enforcement of internal claims and appeals.

Months of speculation came to an end March 24, 2011 when the Equal Employment Opportunity Commission (EEOC) issued its final amended regulations implementing the Americans with Disabilities Act Amendments Act (ADAAA), which took effect on January 1, 2009.

The EEOC's final regulations, which are effective 60 days from their publication in the Federal Register on March 25, 2011, contain significant changes from the pre-Amendments Act ADA. Consistent with Congress's stated purpose in passing the ADAAA, the new regulations expand the ADA's coverage by lowering the standard for proving disability. Although the new regulations do little to quell employer fears of increased liability under the ADAAA, the EEOC has retreated, at least incrementally, from some of the more controversial positions it took in the proposed regulations.

This article highlights some of the more significant changes effected by the final ADAAA regulations, and their likely impact on employers, noting where the EEOC has pulled back from positions it took in its proposed regulations.

Read the entire article about the final ADAAA regulations.

Everyone would probably agree that kittens are cute, cuddly and playful. But a recent decision of the United States Supreme Court has made playing with cats more risky for employers.

The case in question, Staub v. Proctor Hospital, involved what is known as the "cat's paw theory" of proving employment discrimination. Under this theory, it is generally recognized that an employer can be liable for employment discrimination even when the person who made the adverse employment decision was unbiased if the decision was influenced by the discriminatory acts and animus of a non-decision maker (such as biased reports of misconduct). The decision maker is considered to be the "paw" of the discriminatory cat. Over the years the courts have differed somewhat in their application of this theory.

Read the entire article.

State legislators walking out, organized labor sitting in. Terms like "right to work" and "collective bargaining" have been grabbing headlines, as have more stilted versions like "right to work for less" and "Collective bargaining – we bargain, you collect." Probably not since 1981 and the firing of the air traffic controllers by President Reagan has such a rumpus been raised over labor issues that have no foundation in the National Labor Relations Act. That's right – the Act has no jurisdiction here.

Read the entire article.

          On February 24, 2011, the Financial Crimes Enforcement Network (FinCEN) of the Department of the Treasury issued final regulations under 31 CFR Part 1010 addressing the reporting of foreign financial accounts and the form used to file these reports (Form TD-F 90-22.1, Report of Foreign Bank and Financial Accounts, which is commonly referred to as the "FBAR" form). While the language in the final regulations is substantially consistent with the proposed FBAR rules that were published one year ago (read our March 10, 2010 summary of the proposed regulations), the FinCEN clarifies and revises certain provisions regarding which persons will be required to report accounts and which accounts will be reportable, as well as any specific exceptions to the filing requirements.

          The final rules are effective March 28, 2011, and apply to FBARs required to be filed by June 30, 2011, for foreign financial accounts maintained in 2010 and for reports required to be filed for all subsequent years. In addition, filers who properly deferred their filing obligations under IRS Notice 2010-23 (which extended the FBAR filing due date from June 30, 2010 to June 30, 2011 for certain groups) may, but are not required to, apply the provisions of the final rule in determining their FBAR filing requirements for reports due June 30, 2011, for foreign financial accounts maintained in years beginning before 2010.

          Note that the regulations under the Bank Secrecy Act (BSA) have been reorganized; therefore, the text of the final FBAR regulations have been renumbered for consistency. The regulations that were originally under 31 CFR 103.24 in their proposed form now appear under 31 CFR 1010.350 as the final regulations.

Applicability to Governmental Pension Plans

          The regulations still exempt governmental pension plans from the FBAR filing requirements. The proposed rules were accompanied by proposed revisions to the FBAR instructions which, among other things, specifically exempted governmental entities from the filing requirements, as follows:

A foreign financial account of any governmental entity is not required to be reported on an FBAR by any person. For purposes of this form, governmental entity includes: (1) a college or university that is an agency or instrumentality of, or owned or operated by, a governmental entity; and (2) an employee retirement or welfare benefit plan of a governmental entity. (Emphasis added.)

          While the FinCEN states in the preamble that the FBAR instructions have been revised to reflect the language adopted in the final regulations, the instructions were not included in the final regulations, and the rules do not explicitly make the above statement. However, when the final FBAR instructions are released, we expect they will include this exemption. In addition, the final rules retain the language from the proposed rules excepting from the filing requirements persons who have a financial interest in or signature or other authority over an account of any State or any political subdivision thereof. 31 CFR 1010.350(c)(4).

          Thus, the rules provide a filing exemption for the accounts of governmental pension plans, both with respect to the plan itself and with respect to the plan's employees with signature authority over foreign investments. The exemption is applicable for accounts held during 2010 and subsequent years. In addition, both pension plan employees with signature authority over accounts but no financial interest in those accounts who took advantage of the extension provided in IRS Notice 2010-23, and pension plans having commingled funds, none of which were mutual funds, which did not file an FBAR for prior years in reliance on Notice 2010-23, may rely on the final regulations to determine whether the delayed filing is now required.

          For more information about FBAR, the final rule, and how the FBAR materials may impact your governmental plan, please contact Mary Beth Braitman, Terry A.M. Mumford, Katrina M. Clingerman,  Lisa Harrison, or your Ice Miller LLP employee benefits attorney.