In its zeal to eradicate perceived abuses and further clip the wings of executives who, based on press reports, took great pleasure in using the company's airplane for personal purposes, Congress amended section 274(e)(2) of the Internal Revenue Code (the Code). Effective on the date of enactment (Oct. 22, 2004), these amendments effectively reversed the decisions of the Tax Court and Eighth Circuit in <i>Sutherland Lumber-Southwest, Inc. v. Commissioner</i>, and prompted the IRS to issue guidance containing a myriad of rule changes and hinting at others, leaving tax practitioners scratching their heads and companies running for cover.

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In a decision that caught many employers by surprise, the U.S. Court of Appeals for the Fourth Circuit recently held in <i>Taylor v. Progress Energy, Inc.</i> that claims arising under the Family and Medical Leave Act(FMLA), including post-dispute claims, cannot be waived or settled via private agreement between an employee and employer. The only other Court of Appeals ever to consider this issue in the dozen years since the FMLA was enacted reached an opposite result. In light of <i>Taylor</i>, employers inside and outside of the Fourth Circuit must now review the language of their general release agreements and evaluate what, if any, changes are needed.

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Whistleblower suits by in-house counsel not barred by privilegeThe Fifth Circuit has ruled that employers cannot claim attorney-client privilege to exclude…

With the expanded use of patents to protect business innovation, high-stakes patent litigation has become an unwelcome byproduct of business success. Increasingly, such litigation involves numerous patents on different technologies asserted by each side in several forums around the world. The resulting "mega-case" presents a strategic and logistical challenge that tests the skills of the best patent litigators. Unless those challenges are met efficiently, the costs of the mega-case can quickly spiral out of control.

The most important question in every patent case is "what do the claims mean?" The district court answers this question in its claim construction ruling. Presently, every aspect of a district court's claim construction is reviewed <i>de novo</i> by the United States Court of Appeals for the Federal Circuit. <br>The problem of <i>de novo</i> review is tied to the nature of patent claims themselves. Patent claims, the series of numbered paragraphs at the conclusion of the patent, define the scope of the patent owner's rights. Yet, because of the technical nature of inventions, the determination of the scope of rights is not easily made.

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Law firm strategic and operational planners commonly use data from periodic law firm surveys to "benchmark" their own firms' performance. Many law firms now also employ business intelligence (BI) technology to extract more value from their internally collected financial data. Recently, interest has grown in a convergence of these two capabilities: using BI software to combine internal and external data streams, making benchmarking more standardized, sophisticated and reliable.

The U.S. Supreme Court recently issued an important decision concerning the Age Discrimination In Employment Act of 1967 (ADEA). In <i>Smith v. Jackson, Miss.</i>, the Court held that employees aged 40 and over can assert claims for age discrimination under the ADEA based on the disparate impact of a facially neutral employment policy, even in the absence of discriminatory intent on the employers' part. In so doing, the Court reconciled a split in the federal circuit courts of appeal and aligned its view concerning the scope of the ADEA with its view of the scope of Title VII of the Civil Rights Act of 1964, which, according to prior Court decisions, permits employees to allege discrimination because of race, color, religion, sex and national origin based on the disparate impact of a facially neutral employment policy. An increase in the amount of litigation in respect to these types of claims under the ADEA will likely result from the <i>Smith</i> opinion.

Many of our specialist readers are so involved in financial intricacies that it may be difficult for them to answer questions on investment basics from non-initiates. Jim Berliner's clear explanations should be useful not only in advising professionals who earn a large fee but also for any firm member or client who is faced with a major investment decision.