North America

Sharing Cyber Threat Information

The Information Sharing and Analysis Organization-Standards Organization (ISAO-SO) was set up under the aegis of the Department of Homeland Security pursuant to a Presidential Executive Order intended to foster threat vector sharing among private entities and with the government. ISAOs are proliferating in many critical infrastructure fields, including health care, where cybersecurity and data privacy are particularly sensitive issues given HIPAA requirements and disproportionate industry human and systems vulnerabilities. Therefore, in advising their companies’ management, general counsel and others might benefit from reviewing the FAQ’s and answers contained in the draft document that can be accessed at the link below.

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A Perilous “Advice of Counsel” Defense Results in Disclosure, Not Only of Attorney/Client Communications, but of Attorney Work Product Material as Well

Frequently, parties in both civil and criminal cases where fraud or corporate misconduct is being alleged attempt to defend themselves by arguing that they lacked unlawful intent because they relied upon the advice of counsel. Such an assertion instantly raises two fundamental questions:  1) what advice did the party’s attorney actually give?;  and 2) what facts and circumstances did the party disclose, or fail to disclose, in order to obtain that opinion?  It is well understood that raising an advice of counsel defense consequently waives attorney/client privilege. 

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South Carolina: Gas tax increase measure still in play despite disagreements

We recently addressed the increasing possibility that South Carolina would pass a gas tax increase this year, by way of House Bill 3516, formally known as the Infrastructure and Economic Development Reform Act (Act). House members approved it 97 to 18, and it moved to the Senate, where that chamber received it favorably. In mid-March, the measure proceeded to the Finance Committee, but a late March vote of 23 to 18 revealed less widespread support. In early April, the Senate’s debate on the bill was put on hold.
Despite support in the House, there have been suggestions that the Palmetto State may not see a gas tax increase any time soon. The Post and Courier blamed this on “[a] faction of rebellious Senate Republicans [who] killed an effort by members of their own party that would have made the highway gas tax bill a priority.” The dissenting senators took issue with the fact that the increase, which ultimately would have amounted to 12 cents, or 2 cents per year for each year between July 1, 2017, and July 1, 2022, was not offset by either tax cuts elsewhere, or reform of the highway department. The paper characterized the move as a “revolt.”
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Illinois: Chicago’s checkout bag tax explained

The Windy City has recently posted updated guidance on its website to explain the various requirements and procedures put in place since the $0.07 checkout bag tax took effect, on February 1, 2017. Though retailers are not required to, most are likely to pass the tax on to consumers.
Normally, the wholesaler who sells checkout bags to a store is to collect the tax, but if a store receives bags from a wholesaler who has not collected the tax, the obligation is on the store.
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New York: Budget approved with new millionaire’s tax, but without new online sales tax

In a press release touting the passage of New York state’s $153.1 billion budget for fiscal year 2018, Gov. Andrew Cuomo claimed that “we’ve embraced the politics of unity,” in spite of the divisiveness of these “trying times.” The press release highlights the following items:
  • $25.8 billion in education, “the most in history.” This includes free tuition at public colleges and universities for middle-class students;
  • $100 billion for infrastructure investment in projects at LaGuardia Airport, Penn Station, the Bruckner-Sheridan Interchange, and the Kosciusko Bridge, among others;
  • $10 million to the Liberty Defense Project to provide free legal assistance to immigrants, and to enforce anti-discrimination and hate-crimes laws through the newly established $1 million Hate Crimes Task Force; and
  • $2 billion over five years for the Clean Water Infrastructure Act.

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States’ online tax laws continue to prompt lawsuits

There is no end in sight for legal challenges to state government efforts to tax remote sales. The latest involves a lawsuit that Bloomberg made available online, filed by NetChoice and the American Catalog Mailers Association. They say that a new Tennessee administrative rule violates the precedent established in the now familiar 1992 U.S. Supreme Court case, Quill Corp. v North Dakota, which made it unconstitutional for states to impose a use tax collection duty on out of state sellers with no physical presence in that jurisdiction.

The new administrative rule that the suit is premised on contains a nexus provision calling for “[o]ut-of-state dealers who engage in the regular or systematic solicitation of consumers in this state through any means,” with sales to in-state consumers of more than $500,000, to register with the Department, and collect the applicable sales and use taxes on those sales.

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Texas: Comptroller reminds shoppers of upcoming sales tax holidays

In 2016, 17 states, primarily located in the southeastern U.S., offered sales tax holidays, down from a peak of 19 states in 2010, according the Tax Foundation. In the think tank’s 2016 special report characterizing such events at “politically expedient but poor tax policy,” the authors contend that tax holidays distract policymakers and taxpayers from real, permanent, and economically beneficial tax reform. Sales tax holidays introduce unjustifiable government distortions into the economy without providing any significant boost to the economy. They represent a real cost for businesses without providing substantial benefits. They are also an inefficient means of helping low-income consumers and an ineffective means of providing savings to consumers.

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California: Department of Finance takes Board of Equalization to task

In a March 2017 evaluation, the California Department of Finance, Office of State Audits and Evaluations revealed that the California State Board of Equalization’s (BOE) work is problematic because of its operational culture. This has “impact[ed] its ability to report accurate and reliable information to decision makers.” Moreover, “certain board member practices have intervened in administrative activities and created inconsistencies in operations, breakdowns in centralized processes, and in certain instances result in activities contrary to state law and budgetary and legislative directives.”

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Howard & Howard expands corporate transactional practice

Royal Oak, Michigan, April 13, 2017: Howard & Howard Attorneys PLLC is pleased to announce that Matthew P. Breuer has joined the firm. He will practice out of the firms Royal Oak office.

Mr. Breuer concentrates his practice in the area of business transactions and corporate matters, including mergers, acquisitions and reorganizations of business entities and real estate. He counsels clients regarding all aspects of various business transactions including stock purchase acquisitions, business asset purchases, joint ventures, consulting/independent contractor arrangements, employment agreements, investment/governance agreements, financing transactions, licensing agreements, assignment of membership interests/stock, and real property leasing and purchase transactions.

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Redefining skills training for an ageing demographic: higher education policy and vocational guidance

“I think there’s a world market for maybe five computers.” –  Thomas Watson, Chairman of IBM, 1943

“Status Quo. Latin for the mess we’re in.” – Jeve Moorman

I confess that I never paid much attention to those retirement commercials. You know the ones with a distinguished silver-haired white male effortlessly swinging his golf club, or sitting on his yacht in some exotic location? Nor did I pay much attention to those AARP ads. After all, I was not “old” and I was never going to get old, if I could help it. And I’m a Canadian so why would AARP matter. I’ve played a decent and even competitive game of tennis for most of my natural life. And my wife and I are both conservative lawyers with carefully conceived tax and estate plans. We’re doing just fine.

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