Monthly Archives: April 2011

Sarbanes-Oxley "Protected Activity" Wins a Broad Interpretation – But Is the Decision Faithful to Congressional Intent?

By: Allen B. Roberts, Stuart M. Gerson and Daniel J. Schuch

In a case packed with allegations of the kind rarely found beyond the script of a soap opera, the U.S. Department of Labor (“DOL”) Administrative Review Board (“ARB”) determined that protected activity under the Sarbanes-Oxley Act of 2002 (“SOX”) does not require a showing of fraud against shareholders. Rather, per the ARB, it is sufficient that an employee reasonably believes conventional mail or wire fraud has occurred. The holding in Brown v. Lockheed Martin Corp. (pdf) evidences the ARB’s adherence to a literal, and clinical, construction of SOX – and serves as a clear indication of the ARB’s willingness to reach beyond the underlying objectives envisioned by Congress in the wake of the infamous collapse of Enron and WorldCom. If upheld and followed, Brown effectively expands SOX whistleblower protections well beyond the intended beneficiary of the law – the “innocent investor.”

Read full article

Disney’s Approach to Business Excellence – An LMA Recap


As you know if you’ve been following my Twitter stream, or checking Zen in the last couple of months, last week, I attended the Legal Marketing Association’s Annual Conference in Orlando.

Tuesday morning, the conference business sessions officially kicked off with our keynote from Jeff Williford from the Disney Institute, who talked about Disney’s Approach to Business Excellence.  When he began by telling us that he’d be speaking for 90 minutes, I think the audience was worried, but the presentation was so engaging and informative that the time really flew.  And although his presentation was about how Disney creates a truly magical experience here, there were a lot of parallels for the legal industry – we’re also a service industry after all!  Any of the particularly important points that relate to law firms will be in bold throughout the post.

Read full article

Lidings unveils innovative new remuneration policy for senior associates

Lidings unveils innovative new remuneration policy for senior associates

Lidings has developed and introduced remuneration policy for senior associates including a new bonus and reward package.

In a move directly aimed at recruiting highly qualified lawyers to meet ever growing international client demand, senior associates will now be rewarded on the basis of new business development, as well as billable hours.

Read full article

How I love Twitter, Let me Count the Ways

Dear Twitter, how I love you.

Okay, you all know that I love social media, and I fully support people using it, blah, blah, blah.

But it’s not just some new tool that I’m excited about using and have jumped on the bandwagon for. It can be incredibly useful professionally. That was particularly clear to me this week.

Read full article

Making Accountable Care a Reality: Multiple Federal Agencies Issue Proposed Guidance on the Medicare Shared Savings Program

by Shawn M. Gilman, Douglas A. Hastings, Mark E. Lutes, David E. Matyas, Lynn Shapiro Snyder, Carrie Valiant, Dale C. Van Demark, Patricia M. Wagner, and Lesley R. Yeung

On March 31, 2011, the Centers for Medicare & Medicaid Services (“CMS”) released for public comment a much-anticipated Notice of Proposed Rulemaking implementing the voluntary Medicare Shared Savings Program (“Program”) for accountable care organizations (“ACOs”). Also on March 31, the Office of Inspector General, along with CMS, released a Notice with Comment Period to solicit comments regarding proposed waivers from the federal health care program fraud and abuse laws for provider payments made in connection with the Program. On the same day, the Federal Trade Commission and the Department of Justice issued a Notice with Comment Period soliciting comments regarding a “Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program,” and the Internal Revenue Service issued a notice outlining its analysis of tax-exempt organization participation in Medicare ACOs.

Read full article

New Jersey State Department of Labor Proposes Repeal of Existing Overtime Exemption Rules and Adoption of Federal Overtime Exemption Regulations

by Suzanne K. Brown

On August 23, 2004, the U.S. Department of Labor overhauled the Federal overtime exemption regulations with amendments that included elimination of the former “long” and “short” tests for exemption (the application of one or the other being determined by the employee’s salary level), in favor of a single, streamlined duties test for each category of exemption, including executive, administrative, professional and outside sales employees. Since that time, New Jersey’s overtime exemption regulations, which were modeled on the Federal regulations in effect prior to August 2004, have been inconsistent with Federal law. Now, nearly seven years later, it appears that the New Jersey Department of Labor is ready to amend its regulations to eliminate those inconsistencies.

Read full article

Lawyers – We Are Still Missing the Boat with Clients

During the LMA’s opening session on Wednesday, we were treated to a great client panel on achieving greater collaboration – what you need to know to get a win-win relationship with your clients.  On the panel were Stephen Kaplan, the Senior Vice President & General Counsel for Connextions, Inc., Jeff Novak, the General Counsel for AOL Paid Services, and John Lewis Jr., the Senior Managing Counsel-Litigation for The Coca-Cola Company.

Read full article

Medical Marijuana/Cannabis and Employment Considerations

Read about ESSB 5073, the bill in the legislature regarding medical marijuana, and medical marijuana considerations in the employment context.

For more information please visit

Read full article

Is Social Media On Your Mind? The top 5 questions you should be asking

On April 6, attorneys in McDonald Hopkins’ Labor and Employment Practice provided answers to some of the most pressing questions businesses face when dealing with social media. Those questions included:

  1. Isn’t my company better off leaving well enough alone?
  2. How do I protect my company’s brand in the social media world?
  3. Can I discipline employees for engaging in social media activities?
  4. What about privacy rights?
  5. Do I need a social media policy?
Read full article

Special Immigration Alert: Potential Consequences of Government Shutdown

The latest continuing resolution funding federal government operations is set to expire on April 8, 2011, and the threat of a government shutdown appears more of a reality. Under these circumstances, employers need to consider the potential immigration consequences of a government shutdown on foreign national (FN) employees. While contingency plans have not been published, it is instructive to look at what happened during the last government shutdown for guidance. At that time, both the U.S. Citizenship and Immigration Service (“USCIS”) and the U.S. Department of Labor (“DOL”) stopped processing applications. Also, the U.S. Department of State (“DOS”) stopped all passport and visa-processing operations.

Read full article