IN THIS ISSUE : MONDAY, DECEMBER 19, 2011
This Week at the City Bar
Around the Bar
Reminder: Member Survey
Recent Committee Activity
City Bar in the News
   

This Week at the City Bar
MONDAY, DECEMBER 19
9 AM – 12 PM, CLE
A "How To" Guide to Fiduciary Accountings (Video Replay)

6:30 PM – 8:30 PM, Event

Starting Early: Developing Business Relationships to Enhance your Legal Career


TUESDAY, DECEMBER 20
9 AM – 11 AM, CLE
Insider Trading 2011: Current Trends & Recent Developments In The Investigation, Prosecution & Defense Of Insider Trading Cases (Video Replay)


THURSDAY, DECEMBER 22
9 AM 12 PM, CLE
Ethical Considerations for Corporate Investigations: Updates 2011 (Video Replay)

Around the Bar
The Ginsburg Lecture


Nina Totenberg, Legal Affairs Correspondent for NPR, was the featured speaker at this year’s Justice Ruth Bader Ginsburg Distinguished Lecture on Women and the Law. From left, Nina Totenberg, Supreme Court Justice Ruth Bader Ginsburg; City Bar President Samuel W. Seymour.

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To access the Member Survey, please click here.

Recent Committee Activity
Employer Sponsored Health Coverage
The Committee on Employee Benefits and Executive Compensation sent a letter to the IRS commenting on a proposed safe harbor for determining the affordability of employer-sponsored health coverage for the purposes of the shared employer responsibility provision of the Patient Protection and Affordable Care Act (ACA). The letter expresses support for the proposal as it will allow employers potentially subject to the excise tax under §4980H of the Internal Revenue Code, to apply information they already maintain, in assessing whether they are providing their employees with affordable health coverage as determined under the ACA. The letter offers the suggestion that the safe harbor could be improved by allowing employers to make the affordability determination in advance of the plan year; thereby providing them with certainty in advance of open enrollment as to whether the health coverage can be considered affordable as applied to a particular employee.

Vacating an Arbitration Award
The Committee on Arbitration issued a report opposing A.7002-A/S.5798, state legislation which would amend the CPLR to permit the vacatur of an arbitration award where the arbitrator: 1) has been affiliated in any way with any party to the arbitration, or any of its subsidiaries or affiliates; or 2) has a financial interest, directly or indirectly, in any party or in the outcome of the arbitration. Though the report notes that impartiality of arbitrators is fundamental to a fair arbitration hearing and an important public policy, the report expresses concern that the provision is over-broad and vague. Rather than increasing arbitrator impartiality, the report argues, the Bill would only add confusion to the arbitration process, and New York courts could be faced with an increase in cases where parties would prolong the arbitration process by encouraging vacatur motions. The Committee urges that New York enact the Revised Uniform Arbitration Act, which has a much more effective provision dealing with arbitral bias.

Revised Article 7 of the UCC
Article 7 of the Uniform Commercial Code (the “UCC”) governs documents of title covering goods and is invoked most often in connection with the commercial storage and shipment of goods. The Committee on Commercial Law and Uniform State Laws issued a report which analyzes Revised Article 7, compares it to existing New York law, and makes the final recommendation that New York should enact Revised Article 7. The report notes that one of the significant contribution of Revised Article 7 is a new set of rules for electronic documents of title, which would fit relatively seamlessly into the existing system for tangible documents of title, further facilitate commerce, and significantly reduce the costs associated with the storage and shipping of goods.

Insurance Regulation
With the adoption of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, and developments in state insurance law and at the National Association of Insurance Commissioners, a potential expanded role for the federal government in insurance regulation has come into sharper focus. In a letter to the Federal Insurance Office of the Department of the Treasury, the Committee on Insurance Law noted the six areas in which a Federal role is either evolving or contemplated by the passage of Dodd-Frank, and offered comments on how such a role could be helpful or harmful to public policy.

Hydrofracking
In a joint report, the Committees on Environmental Law and Land Use Planning and Zoning issued comments to the New York State Department of Environmental Conservation (DEC) regarding whether local municipalities may exercise land-use or zoning control relative to the siting of hydrofracking wells, as discussed in the Revised Draft Supplemental Generic Environmental Impact Statement for high-volume hydraulic fracturing (“hydrofracking”) in the Marcellus Shale and other low-permeability gas reservoirs. The report notes that relevant statutory provisions do not contain a clear statement of legislative intent to supersede local zoning ordinances; analogous precedent under the Mined Land Reclamation Law indicates that municipalities retain their well-settled authority to regulate land use and zoning and this issue is currently being litigated in at least two state court proceedings. The report recommends that the DEC clarify in the Statement that this issue will be settled by the courts and that it is not taking a position on the issue in the Statement.

City Bar in the News
Corporate Compliance Insights, December 15, 2011

New York City Bar Association Recommends Reassessment Of The FCPA
Last Friday, the International Business Transactions Committee of the Association of the Bar of the City of New York released a report titled “The FCPA and its Impact on International Business Transactions – Should Anything Be Done to Minimize the Consequences of the U.S.’s Unique Position on Combating Offshore Corruption?”…“While the task is daunting and the discomfort of admitting that the current approach has significant flaws is unavoidable, that does not mean that action should not be taken.”


AM Law Daily, December 15, 2011
Cleary Team One Step Closer to Winning Ex-Death Row Inmate’s Freedom
In a pro bono victory for Cleary Gottlieb Steen & Hamilton lawyers, a Tennessee appeals court has vacated the 1985 felony murder conviction of former death row inmate Erskine Johnson and remanded his case for a new trial. The decision – issued on December 9 by the Tennessee Criminal Appeals Court in Jackson – was in large part the product of new evidence turned up by a Cleary team that over the past 15 years has spent at least 15,000 hours on the case while getting contributions from more than 25 of the firm’s lawyers…Cleary entered the case in 1995 after receiving a referral from the NAACP’s capital punishment unit and the New York City Bar Association.


WNYC News, December 13, 2011
NY Gets Friendlier to Socially Responsible Business
Govenor Andrew Cuomo signed a law creating a new legal category of company in New York late Monday night: a Benefit Corporation. The companies that incorporate under the new law must prove they have social and environmental impact…Benefit Corporations in New York will have to submit to third party monitoring on at least one kind of non-financial benefit they provide to society. The law does not mandate which cause or which third party certification organization, something that the New York City Bar association has raised concerns about because it could put corporate boards of directors in difficult positions.

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