1. IRS Hits the Jackpot with Offshore Voluntary Disclosure Program (Taxpayers Do OK, Too)

    Cracking down on tax evaders who hide their money offshore is becoming big business for the Internal Revenue Service. From law firm Duane Morris:

    “According to IRS Commissioner Doug Shulman, the IRS offshore voluntary disclosure programs have so far resulted in the collection of more than $5 billion in back taxes, interest and penalties from 33,000 voluntary disclosures made under the first two programs. In addition, another 1,500 disclosures have been made already under the new 2012 program announced in January.”

    For delinquent taxpayers, the program offers a great way to come clean without running the risks associated with getting caught:

    “Taxpayers who do not submit a voluntary disclosure run the risk of detection by the IRS and the imposition of substantially higher penalties, including the 75% fraud penalty and foreign information return penalties, and an increased risk of criminal prosecution.”

    Something you might want to consider? Read Duane Morris’s comprehensive update first:

    • 2012 Offshore Voluntary Disclosure Program FAQs and Compliance Plan for U.S. Citizens Residing Overseas 

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    And watch this video on the topic:

    [Link: Foreign Asset Disclosure Program - Sanford Millar]

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    Related Reading:

    • IRS Provides Long Awaited Guidance to Current Offshore Voluntary Disclosure Program and Announces a New Procedure to Assist U.S. - Snell & Wilmer L.L.P. 

    • New Guidance on the 2012 Voluntary Disclosure Program - Akerman Senterfitt 

    • A Third “Last” Chance to Disclose Income from Foreign Accounts to the IRS - Armstrong Teasdale LLP 

    • IRS Announces Third Offshore Voluntary Disclosure Program - Cole Schotz 

    • IRS Releases Additional Guidance for U.S. Taxpayers Disclosing Unreported Foreign Accounts - Charles (Chuck) Rubin 

    • IRS Collects $5 bil from Offshore Voluntary Disclosure Programs - Darrin Mish 

    • Incentives for Offshore Voluntary Disclosure Initiative - Sanford Millar 

    • IRS Tightens Offshore Tax Amnesty Participation Rules - Time Running Out - Brian Mahany 

    • IRS Has Reopened Its Offshore Voluntary Disclosure Program - Candida (CJ) Griffin, Esq. 

    • New 2012 Offshore Voluntary Disclosure Program; Taxpayer Advocate Criticizes IRS “Bait & Switch”; Current Offshore Enforcement Initiatives - Duane Morris LLP 

    • IRS Reopens Offshore Voluntary Disclosure Program - Polsinelli Shughart PC 

    • Third IRS Offshore Voluntary Disclosure Program Just in Time for Many Taxpayers Prior Programs Net US$4.4 Billion for Uncle Sam - Butler, Snow, O’Mara, Stevens and Cannada, PLLC 

    • The Pursuit of International Tax Compliance; IRS Reopens Offshore Voluntary Disclosure Program - Akerman Senterfitt 

    • IRS Announces New Off-Shore Voluntary Disclosure Program Without A Deadline - Bryan Cave 

    • Offshore Voluntary Disclosure Program Reopens - Katten Muchin Rosenman LLP 

    • IRS Offshore Voluntary Disclosure Program Reopens - Morrison & Foerster LLP 

    • I.R.S. Offshore Voluntary Disclosure Program Update – Tax Client Alert - Carr, McClellan, Ingersoll, Thompson & Horn 

    • The Third Time’s The Charm – IRS Announces Third Opportunity For Voluntary Disclosure Of Offshore Accounts - Lowenstein Sandler PC 

    • IRS Promises New Procedure for Taxpayers Who Haven’t Filed But Owe No Tax And Indefinitely Extends Offshore Voluntary Disclosure - Moodys LLP Tax Advisors 

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    Find additional tax law updates on JD Supra»

  2. For Lenders and Homeowners, a Big Foreclosure Decision in Massachusetts - Eaton v. Fannie Mae

    On June 22, the Massachusetts Supreme Judicial Court ruled in Eaton v. Federal National Mortgage Association that foreclosures in the state can be valid even if the foreclosing party doesn’t hold the mortgage note.

    The decision isn’t a total victory for lenders, however. Homeowners facing foreclosure also benefit from the ruling because it requires mortgage servicers to establish their authority to foreclosure before taking action. 

    For your consideration, three takeaways from Eaton: 

    1. The ruling establishes clear rules for determining authority: 

    “As a result of Eaton, going forward, mortgagees must be careful not to invoke the statutory power of sale in Massachusetts unless they are either the holder of the underlying note or acting as an authorized agent of the note holder.  In order to avoid claims regarding the validity of foreclosures, it will likely become common practice for foreclosing parties in Massachusetts to record affidavits concerning their relationship to the note or note holder.” (Decision That Foreclosing Party Must Be Note Holder Or “Acting On Behalf” Of Note Holder Likely To Spur Practice In Massachusetts Of Recording Such Relationships by Saul Ewing LLP) 

    2. Completed foreclosures will not be called into question:

    “While rejecting the interpretation urged by the defendants and various industry amici, the court agreed that its contrary interpretation should not apply retroactively. Accordingly, the court held that its ruling would ‘apply only to mortgage foreclosure sales for which the mandatory notice of sale has been given after the date of this opinion.’” (Foreclosing Mortgagee Must ‘Show the Note,’ Massachusetts High Court Rules by Ballard Spahr LLP) 

    3. This likely won’t be the final word on foreclosures in Massachusetts:

    “However, this is not the end of foreclosure litigation in Massachusetts. As with most landmark cases pronouncing a new rule of law, subsequent litigation to clarify what the court meant is likely to follow in this case… All things considered, I will agree with Prof. Levitin who opined: ‘In the immediate term, I’d score the case as a major victory for the financial services industry, which avoided liability for its failure to comply with state law foreclosure requirements. Going forward, however, things are more complicated.’” (Averting The Apocalypse: Foreclosing Lenders Avoid Disaster and Given More Options To Foreclose In Eaton v. Fannie Mae by Richard Vetstein) 

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    See also:

    • Massachusetts Supreme Judicial Court Clarifies Foreclosure Requirements: Eaton v. Federal National Mortgage Association - Dechert LLP 

    • What does the Eaton decision mean for Massachusetts homeowners facing foreclosure? - George Bourguignon 

    • Massachusetts Supreme Judicial Court Rules That Lenders May Foreclose Without Possessing Mortgage Note, But Only In Certain Circumstances - BuckleySandler LLP 

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    Related developments:

    • Borrower May Sue Over Lender’s Failure To Contact Prior to Foreclosure, California Appellate Court Rules - Ballard Spahr LLP 

    • FTC Wins Judgment in Mortgage Modification Case - BuckleySandler LLP 

    • Defects in Chain of Title Must Be Raised Prior to Foreclosure - Ballard Spahr LLP 

    • No Need to ”Show the Note” for a Non-Judicial Trustee’s Sale - Snell & Wilmer L.L.P.

    • State Law Update: South Carolina Adopts Mortgage Lending Act Regulations - BuckleySandler LLP 

    • Case Reconsidered In Light Of Residential Funding Co., LLC V. Saurman - Warner Norcross & Judd 

    • Special Alert: California Legislature Approves Key Parts of State’s “Homeowner Bill of Rights” - BuckleySandler LLP http://www.jdsupra.com/legalnews/special-alert-california-legislature-ap-60493/

    • Sixth Circuit Holds Foreclosure Filing Before Transfer of Mortgage and Note May Violate FDCPA - BuckleySandler LLP 

    • New York’s Proposed Foreclosure Fraud Prevention Act Would Criminalize “Robo-Signing” - Dechert LLP 

    • Maryland Appellate Decision Makes It Easier for Creditors Holding Notes with Gaps in the Chain of Title to Foreclose - Saul Ewing LLP 

    • Feds Extend Deadline for Reviewing Defective Foreclosures - Lawyers.com 

    • Lack of Standing Is an Affirmative Defense – Wells Fargo Bank, N.A. v. Reeves - Trenam Kemker 

    • Regulators Extend Foreclosure Review, Issue Financial Remediation Framework, Publish Status Report - BuckleySandler LLP 

    • State Law Update: North Carolina, Connecticut, Ohio Update Banking, Mortgage Laws - BuckleySandler 

    • Another California Court Approves The Use Of MERS - Sheppard Mullin Richter & Hampton LLP 

    • Independent Foreclosure Review Remediation Guidance and Extension - Orrick, Herrington & Sutcliffe LLP 

    • Bank May Foreclose By Advertisement Even When The Mortgage Note Is Lost - Warner Norcross & Judd 

    • The FHFA’s New Buy-Back Statement - Bilzin Sumberg Baena Price & Axelrod LLP 

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    Find more real estate law updates on JD Supra»

  3. Obamacare Legal Analysis: An Audio & Video Roundup

    Here’s a quick look at recent audio and video legal analysis posted on JD Supra covering last week’s Supreme Court Health Care Reform decision:

    [Link: Goldstein: What Conservatives Won in the Health Care Case - Bloomberg Law]

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    [Link: Supreme Court Upholds PPACA’s Individual Mandate, Alters Medicaid Provision—Mintz Levin’s Thomas Crane - LXBN]

    —

    [Link: Why Did John Roberts Decide to Uphold the Affordable Care Act’s Individual Mandate?—Max Kennerly - LXBN]

    —

    Also see the following related piece from law firm Allen Matkins, posted in advance of last week’s ruling:

    [Link: Healthcare Summit Reveals Industry Movement Independent of the Supreme Court Decision - Allen Matkins]

    …

    We’ll post additional video updates as they come in…

  4. Most-Viewed on JD Supra - June, 2012

    For your reference, here’s a look at the most-viewed updates, commentary, and video on JD Supra for the past month:

    1. The Big Law Firm Demise - It Happens Like This - Edwin Reeser
    2. The Ultimate Retirement Plan Sponsor Checklist - The Rosenbaum Law Firm
    3. Indiana’s New Anti-Smoking Law - Fisher & Phillips LLP
    4. Indiana Imposes Statewide Smoking Ban - Littler
    5. The Devil (Dog) ® is in the Details: Bankruptcy Court Denies Hostess’s Motion to Reject Collective Bargaining Agreements on Narrow Factual Grounds - Cadwalader
    6. Consumer Wins Spectacular Victory Against Debt Collector Stock & Grimes - Joseph A. Mullaney, III
    7. IRS Posts Draft Revised Withholding Forms Conforming To FATCA - Proskauer Rose LLP
    8. To Violate FDCPA, Collection Letter Must ‘Expressly’ Require Written Debt Dispute, Ninth Circuit Holds - Ballard Spahr LLP
    9. 2012 E-Verify Laws Update - Spilman Thomas & Battle, PLLC
    10. Attorneys’ Fees Awarded To Defendants In Fair Debt Collection Practices Act Case - Kronick, Moskovitz, Tiedemann & Girard
    11. New York’s Highest Court Addresses Rescission of Policy to Additional Insured - Traub Lieberman
    12. Trade & Manufacturing Alert - June 2012 - King & Spalding
    13. The Importance of Keeping Abreast of the Law of Workplace Dress Codes - Greenberg Glusker
    14. Federal Circuit Affirms Patent and Trademark Office’s Denial of Patentability Despite Federal Circuit’s Prior Holding of Validity - Patton Boggs LLP
    15. John Cena Wrestles Over Prenup in Divorce - Lawyers.com
    16. The National Labor Relations Board Discusses Employer Social Media Policies (Again) - Pierce Atwood LLP
    17. Brinker: California Supreme Court Clarifies Standards for Meal Periods - Steps Employers Should Take Now - Allen Matkins
    18. Ninth Circuit Affirms Trial Court Decision In Waldorf Methods Case - Kronick, Moskovitz, Tiedemann & Girard
    19. The Legal Four Corners Of Social Media And E-Discovery For Businesess - Michelle Sherman
    20. Breaking News on Government Strike in Brazil Affecting Immigration Applications - FosterQuan LLP
    21. Using S Corporations to Avoid the Medicare Tax - Duane Morris LLP
    22. Family Law: Facebook as Evidence in Family Law Court? Sustained - Rowley Chapman Barney & Buntrock, Ltd.
    23. [Video] Why are the Innocent Convicted - Bloomberg Law
    24. Acting NLRB GC Issues Updated Report Concerning Social Media Cases - Morgan Lewis
    25. Cloud Computing and the USA Patriot Act: Canadian Implications - Fraser Milner Casgrain LLP

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    Additional:

    Follow daily updates of trending topics & updates on Twitter @JDSupraBuzz

  5. Health Reform Law: A Roundup of Obamacare Legal Analysis

    You know what the Supreme Court decided on Thursday. Since then, everyone has been trying to make sense of it all.

    For your reference, here’s a roundup of posts we’ve written thus far, as we organize the excellent PPACA legal analysis written by lawyers and law firms over the past few days.

    You should see:

    - Obamacare Ruled Constitutional: What It Means for You

    One of our very first posts on the decision, this includes a long list of links to early analysis by lawyers and law firms writing on JD Supra.

    A good starting point»

    - 5 Immediate Steps for Businesses Now That Obamacare Upheld

    “The U.S. Supreme Court ruling to uphold the Patient Protection and Affordable Care Act doesn’t mean the end of legal challenges to health care reform efforts, but it does mean that employers can no longer wait to make the changes required by the law…”

    Read the entire analysis for business owners»

    - What the Obamacare Ruling Means for Health Care Providers

    “The decision will allow institutional health providers (hospitals, etc.) to begin implementing long-considered plans for a no-longer-distant future. What might that future bring? Three themes…”

    Read the entire analysis for health care providers»

    - Biosimilars Benefit From Healthcare Reform Decision

    In the words of law firm Dechert LLP: “Presumably it will be full speed ahead through the regulatory process, and we will see biosimilar applications for approval and attendant patent litigation before too long…”

    Read the entire analysis on the benefits for biologics»

    - And on JD Supra

    Here’s where you can keep track of all the new law firm advisories as they come in to JD Supra. We’ll be writing additional, theme-specific blog posts in the coming days. In the meantime:

    Healthcare reform updates on JD Supra»

    —

    @JDSupra

  6. EPA Greenhouse Gas Regulations Upheld

    On June 26, the DC Court of Appeals ruled in Coalition for Responsible Regulation v. EPA that the Environmental Protection Agency was “unambiguously correct” when it set limits on greenhouse gas emissions.

    The 82-page decision dismissed more than 60 lawsuits filed by corporations, states, and industry groups seeking to stop federal regulations limiting industrial and automotive emissions.

    For your reference, a roundup of commentary and analysis on the ruling:

    Federal Court of Appeals Upholds U.S. EPA Greenhouse Gas Regulations (Warner Norcross & Judd):

    “The U.S. Court of Appeals for the District of Columbia has dismissed challenges by state and industry groups to four U.S. EPA rules that form the basis of EPA’s regulation of greenhouse gas (GHG) emissions under the Clean Air Act. In the June 26 opinion, the Court denied challenges to EPA’s ‘endangerment finding,’ i.e., EPA’s conclusion that GHGs pose a health risk that should be regulated under the Clean Air Act.” Read on»

    D.C. Circuit Decision on EPA Greenhouse Gas Rules Emphasizes Importance of Massachusetts v. EPA (Lane Powell PC): 

    “Throughout the opinion, the court references not only the plain language of the Clean Air Act, but also emphasizes the important role played by the U.S. Supreme Court’s 2007 decision in Massachusetts v. EPA in determining the outcomes. The court repeatedly cites to Massachusetts not only as the foundational support for EPA’s initial determination to regulate greenhouse gases as an air pollutant under the Clean Air Act, but also in disposing of several challenges.” Read on»

    D.C. Circuit Upholds EPA’s Greenhouse Gas Regulations: Green-lights the centralized control of industrial development through the issuance of permits for greenhouse gases (Jackson Walker):

    “The EPA’s greenhouse gas regulations are certain to be appealed to the United States Supreme Court, but bolstered by its success in the intermediate appellate court, EPA will continue to promulgate further greenhouse gas regulations, like its recently proposed New Source Performance Standards which, if adopted, will require new fossil fuel-fired electric generating units to achieve a CO 2 emission rate equivalent to that of a modern natural gas combined cycle facility, and set emissions limits of 1000 lb CO 2/MWh.” Read on»

    Easy Cases Make No Law (We Hope): The D.C. Circuit Upholds EPA’s Greenhouse Gas Regulations (Foley Hoag LLP):

    “I’m left with two conclusions. The first, regarding GHG regulation itself, is that, as noted in E&E Daily today, the ball is now squarely back in Congress’s court. Of course, now Congress knows for certain that the default is GHG will be regulated if Congress does not act…The second is that I wish this case had never been brought. I understand that the stakes were high, but there was always only going to be one outcome.” Read on»

    D.C. Circuit Rebuffs Challenges to EPA’s Climate Change Regulations (Morrison & Foerster LLP):

    “While the decision is a clear victory for the EPA, ultimately the issues are likely to be decided by the Supreme Court. And with further attempts in Congress to reverse EPA’s actions pending, the states remain sharply divided regarding federal attempts to address global warming.” Read on»

    We’ll add additional updates as they come in.

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    Also see: 

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    Find more environmental law updates on JD Supra»

  7. Arizona Immigration: Legal Analysis of the SCOTUS Decision [with VIDEO] →

    From Is That Legal?:

    “While it is nice to know the majority of the Supreme Court agrees that immigration law should be federal, it is a bit disheartening to see the human and economic toll taken to arrive at this point” - Davis Brown

    For your reference, here’s a look at how immigration lawyers are writing about the June 25, 2012, U.S. Supreme Court decision regarding Arizona’s controversial immigration law…

    Read the analysis»

  8. Who’s Eligible? A Look at President Obama’s News on ‘Illegal’ Immigrants

    Much buzz today about President Obama’s announcement of a shift in policy regarding certain young illegal immigrants/undocumented workers. The dominant question, of course: who is eligible?

    Here’s an answer from law firm Snell & Wilmer ->

    To be eligible, individuals must demonstrate that they meet the following criteria:

    1. Came to the United States under the age of 16 years;
    2. Have continuously resided in the United States for at least five years preceding June 15, 2012 and are present in the United States on June 15, 2012;
    3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
    4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
    5. Are not above the age of 30.

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    Read the analysis & commentary:

    —

    [Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children - Janet Napolitano, Secretary of Homeland Security]

    Additional immigration news available here»

  9. App Developer 24X7 Charged with Violating Children’s Online Privacy Protection Act

    New Jersey Attorney General Jeffrey Chisea has filed a suit in federal court against 24X7digital LLC, accusing the smart-phone applications provider of breaking laws that protect the online privacy of children. From law firm Pillsbury:

    “The suit alleges that 24 x 7’s kids educational apps collect personal information from children younger than 13 and transmit that information to a third-party without parental notice or consent. The information includes kid created profiles containing their first and last names and a picture. The app allegedly transmits that information and the unique device identification number associated with the mobile device the child is using.”

    If the allegations are true, the developer’s practices violate the Children’s Online Privacy Protection Act (COPPA), which requires parental consent for the collection and disclosure of any personally identifiable information from children. From Davis Wright Tremaine: 

    “According to the complaint, 24x7 promotes [its] apps as having a ‘simple and intuitive’ interface that ‘allows children to play without help from an adult.’  The complaint also alleges the apps encourage and/or enable players to provide their first and last names, and a picture of themselves, and that the apps collect the unique device identification number (UDID) for the mobile device a player uses, and that the profile and UDID are transmitted to a third-party data analytics company.”

    The lawsuit is in its early stages, but the message is clear: state and federal officials are serious about protecting the privacy of children online.

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    Read the updates:

    • Case to Watch: Chisea v. 24x7digital on Children’s Online Privacy (Davis Wright Tremaine LLP) 

    • Top Selling Mobile Educational App Developer Sued for COPPA Violations (Pillsbury) 

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    For additional social media law updates, follow our @SMediaLaw Twitter feed»

  10. Focus on: Native American Legal Issues

    For your reference, a roundup of recent updates on issues related to Native American law in the United States:

    Real Estate Transactions With Native American Tribes (Miller Starr Regalia)

    “Tribal rights to Indian lands are the exclusive province of federal law. Exclusive federal authority over Indian affairs is based on three provisions of the United States Constitution: the Indian commerce clause, which gives Congress the exclusive power to control Indian commerce; the treaty clause; and the supremacy clause, which, together with extensive congressional legislation on Indian affairs, has broadly preempted state law… Indian tribes are domestic dependent nations that exercise inherent sovereign authority over their members and territories. Indian tribes are not subject to suit in state or federal courts unless an enforceable sovereign immunity waiver or a federal law authorizes suit in another forum.” Read on»

    Glossary of Indian Tribal Finance Terminology (Orrick, Herrington & Sutcliffe LLP)

    “This glossary is intended as a handy reference guide for tribal leaders and finance officers and for those who work closely with them. We have tried to cover a variety of borrowing situations from bank loans, to taxable or tax-exempt bonds, to high-yield note offerings and more. In each case, we have tailored the explanations to the unique circumstances that affect Indian tribal governments and business enterprises when they borrow money for tribal projects.” Read on»

    Internet Gaming and Indian Country: The Trends and the Strategies (Pillsbury Winthrop Shaw Pittman LLP)

    “For most of the twentieth century, gambling in the United States was confined to the State of Nevada. Much has changed in the last twenty-five years since adoption of federal law expressly authorizing Indian gaming. Today, hundreds of casinos are operated by tribes, on Indian lands throughout the country. Indian gaming accounts for nearly half of the industry. Now, a change in position by the federal government—combined with the rapid growth and popularization of the Internet—has the potential to open a new frontier: Online gaming.” Read on»

    Federal Agencies Move to Regulate Aspects of Hydraulic Fracturing (Morgan Lewis)

    “The proposed rules from the Interior Department’s [Bureau of Land Management (BLM)] govern future hydraulic fracturing of oil and natural gas wells on 700 million acres of federal mineral estate and 56 million acres of Indian mineral estate. Currently, such lands account for approximately 3,400 new wells per year, 90% of which BLM estimates are developed using hydraulic fracturing. The proposed rules revise current BLM regulations, imposing various new requirements on hydraulic fracturing operations (both future and already operational). Public comments on the proposed rules are due within 60 days of formal publication in the Federal Register (expected shortly), with BLM expected to adopt final rules by the end of 2012.” Read on»

    FTC Files Case Against Tribe-Affiliated Payday Lenders (BuckleySandler LLP)

    “On April 2, the FTC announced that it filed a complaint in the United States District Court for the District of Nevada against a payday lending operation that allegedly charged undisclosed and inflated fees, and collected on loans illegally by threatening borrowers with arrest and lawsuits… According to the FTC, the defendants have claimed in state court that they are immune from legal action because of their affiliation with Native American tribes.” Read on»

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    Find more like these at JD Supra»