Jay Hollander's Weblog - Commercial Law

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Sun Oct 16, 2005

Understanding Email

Everyone uses email but, in a world where email is sliced, diced and used for everthing from litigation to passing viruses to being included in knowledge management, do you really know how to work with email?

Inc. magazine recently published a guide to common questions about managing email in a commercial setting, which makes for a good primer for those who've still avoided dealing with the issue.

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Mon Oct 10, 2005

Bloggers Hope to Come Under Shield Law Meant for Journalists

In response to the firestorm arising out of the efforts to protect conversations between journalists and members of the Executive Branch regarding the brewing scandal known as "Plamegate", federal legislation has been proposed to create a shield for journalists.

Much to the disappointment of the blogging community, Senate Republican Richard Lugar, co-sponsor of the proposed Free Flow of Information Act of 2005, indicated that bloggers would "probably not" be considered journalists under the proposed federal shield law, at an event held by the Inter American Press Association earlier today.

Lugar stressed, however, that no final decision had been made about how to define a journalist under the proposed statute.

"Are bloggers journalists or some of the commercial businesses that you here would probably not consider real journalists? Probably not, but how do you determine who will be included in this bill?"

By its language, the "covered person" protected by the bill's terms includes "any entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that publishes a newspaper, book, magazine, or other periodical in print or electronic form; operates a radio or television station (or network of such stations), cable system, or satellite carrier, or channel or programming service for any such station, network, system, or carrier; or operates a news agency or wire service." The legislation also covers employees, contractors or other persons who "gathers, edits, photographs, records, prepares, or disseminates news or information for any such entity."

While it's not clear whether bloggers will come within this definition, it's also unclear as to whether or not some unfair advantage in the journalistic playing field is being given to traditional media outlets over the ascending blogosphere.

Read more at http://tinyurl.com/arv3n

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New Proposal to Toughen Data Safeguards

Following California's consumer data protection legislation, members of the House of Representatives have introduced proposed federal legislation to protect sensitive consumer information, help combat identity theft and create a uniform national standard for giving notice of data breaches to consumers.

The legislation, titled the Financial Data Protection Act of 2005, aims to create a uniform standard of care to protect consumer information, set rules for consumer notification in the event of a breach and, notably, requires companies to provide free credit monitoring services to consumers for six months when their information has been compromised.
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Fri Oct 07, 2005

Preview of New Electronic Discovery Rules

The U.S. Judicial Conference has approved far reaching proposed changes to the Federal Rules of Civil Procedure, relating to the rapidly evolving issues concerning electronic discovery.

Such discovery, plagued by inconsistent court rules and case law decisions, will, at least at the federal level, have facial uniformity, that is, until there is litigation about the meaning of any particular provision.

While the amendments still require U.S. Supreme Court and legislative approval, it is assumed that these last hurdles will be overcome without difficulty. If so, the new rules will take effect December, 2006.

A summary of the new rules is contained in a larger summary of other recommended changes to various civil and appellate procedure rules, which can be found at http://www.uscourts.gov/rules/Reports/ST09-2005.pdf

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Tue Sep 27, 2005

High Speed Wiretaps OK'd by FCC

Last month, the FCC issued a news release reflecting its order that providers of certain broadband and VOIP services can be subject to legal wiretaps.

As reflected in the Commission's News Release,

"The Order is limited to facilities-based broadband Internet access service providers and VoIP providers that offer services permitting users to receive calls from, and place calls to, the public switched telephone network. These VoIP providers are called interconnected VoIP providers."

The full Order can be found at http://tinyurl.com/7ks5q

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Wed Sep 21, 2005

Court Prohibits Cell Spam

Applying provisions of the Telephone Consumer Protection Act of 1991, an Arizona appellate court unanimously upheld a lower court ruling that found against Acacia Mortgage Corp. which had sent unsolicited emails to cell phones by using the recipient's cell phone email service to contact them rather than dialing their cell number.

The appellate court found that: "(e)ven though Acacia used an attenuated method to dial a cell phone telephone number, it nevertheless did so..."

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Thu Sep 15, 2005

Voluntary State Sales Taxes for Internet Purchases

It seems that scarecely a year goes by without some new, yet unsuccessful, iniative to overcome the conceptual resistance to allowing states to compel onlyine merchants to collect sales taxes on Internet sales.

The reasons for the resistance have been gone over many times, including, among others, technical problems in reconciling disparate state tax schemes and exepmptions but, now, there is a new kind of initiative, designed to encourge, not require, the collection of such taxes by online merchants.

Added to this is the fact that, as far back as the early 1990's, the U.S. Supreme Court forbade states from compelling merchants to collect state sales tax unless the merchant had a physical presence in the state.

But, a new initiative, called the "Streamlined Sales Tax Project" aims to change this by coming up with a viable technology to simplify the collection and administration process, in the hopes of convincing the government to overrule the Supreme Court precedent.

More details can be found in an article in today's New York Law Journal at http://tinyurl.com/82wbh .

A group of thirteen states

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Tue Sep 13, 2005

New IRS Policy Guideline on Auto Deductions

WASHINGTON – The Internal Revenue Service and Treasury Department announced today an increase to the optional standard mileage rates for the final four months of 2005.

The rate will increase to 48.5 cents a mile for all business miles driven between Sept. 1 and Dec. 31, 2005. This is an increase of 8 cents from the 40.5 cent rate in effect for the first eight months of 2005, as set forth in Rev. Proc. 2004-64.

“This is about fairness for taxpayers,” said IRS Commissioner Mark W. Everson. “People are entitled to deduct the real cost of operating a vehicle. We’ve responded to the recent gas price increases by making this special adjustment so taxpayers get the tax benefit they deserve.”

In recognition of recent gasoline price increases, the IRS made this special adjustment for the final months of 2005. The IRS normally updates the mileage rates once a year in the fall for the next calendar year.

“With many predicting a decline in gas prices over coming months, we will hold off on setting the 2006 rate until closer to January,” Everson said. Next year’s rate could be lower than 48.5 cents.

While gasoline is a major factor in the mileage figure, other items enter into the calculation of mileage rates, such as the price of new vehicles and insurance.

The optional business standard mileage rate is used to compute the deductible costs of operating an automobile for business use in lieu of the extra burden of tracking actual costs. This rate is also used as a benchmark by the federal government and many businesses to reimburse their employees for mileage.

The new four-month rate for computing deductible medical or moving expenses will be 22 cents a mile, up from 15 cents for the first eight months of 2005. The rate for providing services for charitable organizations is set by statute, not the IRS, and remains at 14 cents a mile.

The annual Revenue Procedure includes limitations on who is not eligible to use the standard mileage rate.

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Mon Apr 18, 2005

Unintended Consequences for the Class Action Fairness Act?

This news story falls into the You Can't Win for Losing category. The Class Action Fairness Act, recently signed into law, was designed to hem in what was perceived to be overly aggressive and manipulative plaintiffs by switching class action lawsuits to federal, instead of state, courts.

Part of the strategy was to preclude plaintiffs from forum shopping to figure out which state court might grant them the most money. Federal courts are viewed as harder to sue in, requiring larger and more skilled firms, and results tend to be more uniform than in state courts, according to perception.

Some observers, according to an article in Law.com, are now predicting that, true to the law of unintended consequences, defendants may not get the benefits they hoped for after all from the new law. Why? Because funneling most class action lawsuits to federal court also will have the effect that defendants will now face "bigger, richer, more experienced plaintiffs firms".

Not only that, but plaintiffs lawyers can keep class actions in state courts if two-thirds of the class and the defendant are citizens of the state. Plaintiff's attorneys are therefore expected to demand defendants' customer lists to do an analysis prior to the case being able to be transfered to federal court.

http://tinyurl.com/8hy6x [sub req'd]

Class Action Fairness Act: http://thomas.loc.gov/cgi-bin/bdquery/z?d109:s.00005:

President George Bush's speech when signing the Act:
http://www.whitehouse.gov/news/releases/2005/02/20050218-11.html

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Thu Apr 14, 2005

An Uncertain Basis for Estate Tax Repeal

Nothing in tax law is as it seems. Even the simple can be complicated. Take, for instance, the recently publicized vote in the House of Representatives to permanently repeal the Estate tax.

Leaving aside questions of whether such permanent repeal would amount to a perpetual budget busting loss of revenue, might it surprise you to know that other portions of the repeal bill ironically would cause many taxpayers to pay more taxes on certain inherited propertiy than would be paid under prevailing law?

Well it's true, says the National Multi Housing Council and the National Apartment Association. And it's all due to the new bill's elimination of stepped up basis, the tax fiction that allows recipients of inherited depreciated property to "step up" their tax basis to a property's fair market value at the time of inheritance, rather than measuring capital gains from a lower basis of the property when held in the hands of the donor.

For more details on how the permanent repeal of the Estate tax could prove more taxing to many, read

http://biz.yahoo.com/prnews/050414/dcth086.html?.v=1

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