Monthly Archives: May 2011

ILN Today Post

Going for broke

Adjudication can help companies’ cashflow, but what happens in cases of insolvency when there is no cash to flow?

There’s no point winning an adjudication if the other party can’t be made to comply with the decision. The robust approach taken by the Technology and Construction Court to enforcing adjudicators’ decisions has made it a powerful tool to help companies protect their cashflow – but only if they are still solvent. Although adjudication is a quick, “rough and ready” procedure, the court has enforced adjudicators’ decisions by granting summary judgment. Judges have felt able to do this because although adjudicators’ decisions are binding, they are not final, so a losing party can begin proceedings for final determination of the dispute.

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Thomas White article on annuities in 401(k) plans featured on

Thomas M. White

Chicago Partner Thomas White‘s article, “Annuities in 401k Plans: What a Plan Sponsor Should Keep in Mind,” is featured on The article originally appeared in the May issue of Benefits Magazine. is a prime provider of information, opinion, analysis, news, rules, and other 401k and 403(b) resources for plan sponsors, retirement professionals, and plan participants.

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George Apostolides moderates Chicago Bar Association panel

George P. Apostolides

Chicago Partner George Apostolides was the panel moderator at the May 4 Chicago Bar Association program, “Picking the Best Jury: Effective Techniques by the Experts.” The panelists offered tips on jury selection and spoke of the issues regarding the current federal court trial of former Governor Rod Blagojevich.

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Robert E. McKenzie provides insight to Tax Notes on the various sentencing outcomes of tax crimes

Robert E. McKenzie

In the article, “Light sentences from offshore account prosecutions won’t last,” Chicago Partner Robert E. McKenzie discussed possible mitigating factors in tax crime sentencing. The article delved into the Department of Justice’s prosecution against taxpayers with unreported offshore accounts and whether resulting sentences are too light. The article appeared in the May 9 issue of Tax Notes. Tax Notes is published by Tax Analysts, which is a nonprofit publisher of in-depth tax information.

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Richard Rosenbaum successfully represents client in trial court judgment and sentence reversal

Richard L. Rosenbaum

Fort Lauderdale Partner Richard Rosenbaum successfully represented his client in the matter of Costa v. State of Florida. In the decision the appellate court reversed the trial court’s judgment and sentence of his client. The court remanded a new trial due to the State of Florida’s failure to conduct a Richardson hearing.

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Introductory meeting set for June 7 on Arnstein & Lehr’s partnership with ABA Business Law Section and Junior Achievement to promote youth financial literacy


John L. Ropiequet

In March, Arnstein & Lehr agreed to participate in a financial literacy education effort for high school students under the sponsorship of the ABA Business Law Section (BLS) in partnership with Junior Achievement (JA Worldwide). On Tuesday, June 7, the firm will host an introductory meeting in our Chicago office with the Chicago chapter of JA Worldwide to discuss the firm’s participation in Financial Literacy – Foundation for Success: A Global Perspective. The BLS seeks to raise awareness among business lawyers of the need to educate students about personal finance, credit and identity theft. Click on the link here and here to read more about the program. The initiative came about through the leadership of the Business Law Section’s Consumer Financial Services Committee and its Pro Bono Committee. The firm became aware of the pilot program through Chicago Partner John Ropiequet’s work as a pro bono liaison of the BLS Consumer Financial Services Committee to the BLS Pro Bono Committee.  Mr. Ropiequet already has three people signed up but is looking for additional volunteers for this worthwhile endeavor.

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Partner Jerold Schneider article on the problem with work-for-hire provisions in various agreements appears in Daily Business Review

Jerold I. Schneider West Palm Beach Partner Jerold Schneider authored the article, “Work-for-hire standard could prevent  copyright protection,” which appeared in the May 11 issue of Daily Business News. The article addresses the difficulties that can occur when determining copyright ownership in work-for-hire situations. The Daily Business Review, an ALM publication, provides legal, real estate and financial information for the top lawyers and business executives in Miami-Dade, Broward and Palm Beach counties.

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What your handbook says could hurt you

In Jurys Boston Hotel-356 NLRB No. 114.pdf, the National Labor Relations Board (NLRB) recently decided that regardless of whether or not an employer enforces its handbook policies, the mere existence of a policy deemed unlawful by the NLRB may have a significant impact. Indeed, the NLRB served up a not so gentle reminder of the importance of regularly reviewing and updating your employment policies.

Pursuant to a neutrality agreement, the employer recognized the union, UNITE HERE, and signed onto a master contract in 2004. In 2006, following the expiration of the master contract, an employee filed a petition for a decertification election.

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Meeting the Requirements for Defining the “Essential Health Benefits Package:” DOL Publishes Survey of Employer-Sponsored Coverage

by Lynn Shapiro Snyder, Clayton J. Nix, and Lesley R. Yeung

The U.S. Department of Labor (“DOL”) released a survey report on April 15, 2011, that is being used to satisfy a requirement in the Patient Protection and Affordable Care Act (“ACA”) that the Secretary of Labor “conduct a survey of employer-sponsored coverage” as a condition precedent to the development of the “essential health benefits package” by the Secretary of Health and Human Services (“HHS”). This DOL survey is the first step in the process laid out in ACA for establishing the minimum benefits package to be offered in the various health insurance exchanges for which subsidies and tax credits will be available. Under ACA, the Secretary of HHS ultimately has the discretion for determining the “essential health benefits package,” which goes to the heart of federal health reform. Companies that are interested in the scope of the “essential health benefits package” will want to review not only this published DOL survey in detail, but also other DOL survey information, and should consider weighing in with the Secretary of HHS before any preliminary positions are published by HHS in proposed or interim final regulations.

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U.S. Supreme Court Reins-In The Scope of Whistleblower Lawsuits Filed Under the False Claims Act

By: Stuart M. Gerson

On May 16, 2011, the U.S. Supreme Court decided the case of Schindler Elevator Corp. v. United States ex rel. Kirk (pdf), holding that the public disclosure bar of the False Claims Act (FCA) is triggered by a federal agency’s written response to a Freedom of Information Act (FOIA) request. This important, and much awaited, decision makes it clear that an agency’s FOIA response constitutes a “report” for purposes of the FCA’s public disclosure bar, which forecloses private parties from bringing qui tam whistleblower suits to recover falsely or fraudulently obtained federal payments where those suits are “based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media.” 31 U. S. C. §3730(e)(4)(A).

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