Canada's national spam task force delivered its report on May 17 to Industry Minister David Emerson. Internet Law & Strategy Board of Editors member Michael Geist was a member of the task force and served as the co-chair of the law and regulatory working group. This article discusses the task force's report, recommendations and impact.
Historically, states, not the federal government, have been responsible for regulating charities. State regulation is designed to protect consumers from fraud and abuse. The federal government's role is generally limited to providing tax incentives that inure to the benefit of valid charities.
The latest rulings from around the nation.
The Supreme Court's decision in United States v. Booker, 125 S.Ct. 738 (2005), brought significant changes to federal criminal procedure. Mandatory sentences under the federal Sentencing Guidelines (Guidelines) became advisory, and with this change came some subtle but important opportunities for criminal defendants who cooperate or provide "substantial assistance" in prosecutions. Now, convicted corporations and employees may be able to provide more input to courts about their cooperation with or assistance to the government. This may make sentencing judges more willing to grant downward departures from sentences calculated by Guidelines formulas.
The dangers to the proper functioning of the corporate attorney-client privilege in the wake of recent federal and state law enforcement activities have been well-documented and widely discussed. The year is only half over and already two reports on the issue have been produced and a third major inquiry is underway. A survey by the Association of Corporation Counsel disclosed that 30% of the respondents' corporate clients had "personally experienced an erosion in protections offered by privilege/work product." A similar survey of outside counsel conducted by the National Association of Criminal Defense Lawyers reported 47% of corporate clients had experienced such an erosion. Both organizations have taken up the difficult task of 'debunking the myth' that assertion of the privilege is inappropriate or a sign of guilt.
Government plays a critical role in the design of some free markets and in the operation of many. The recent energy debacle in California resulted in part from defective governmental design of California's markets for wholesale and retail electricity. Even where markets are shaped largely by private-sector activity, government often has a critical role in influencing the incentives that guide conduct in those markets. In particular, law enforcement agencies, especially regulatory agencies, have a critical responsibility for the proper functioning of competitive markets within their jurisdiction -- the responsibility to elaborate and enforce applicable laws so as to constrain market forces from driving participants into socially undesirable conduct.
National rulings of interest to you and your practice.
The filing of a case under Chapter 11 of the Bankruptcy Code bestows certain "inalienable" rights upon a debtor. In addition to the hallmarks of a bankruptcy case, such as the automatic stay's "breathing space" and the "fresh start" of a discharge, debtors have traditionally enjoyed rather protracted periods of "plan exclusivity." Plan exclusivity, as it is commonly referred, is that period in a Chapter 11 case in which the debtor has the "exclusive" right to file a plan of reorganization. With the passage of the amendment to Bankruptcy Code section 1121, Congress has encroached upon this particular "inalienable" right.
Esoteric and arcane, the financial contract provisions of the new Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 -- those dealing with repurchase agreements, securities contracts, swap agreements, forward and commodity contracts -- have been given short shrift by a mainstream media focused on the more "newsworthy" consumer provisions of that legislation. However, to bankruptcy practitioners focusing on larger commercial cases or involved in the capital markets, these amendments are important and deserve a close look.
Lessors of commercial property and providers of utility services should benefit from several key changes to the Code. Revisions to Sections 365 and 366 will provide lessors and utilities, respectively, with protections not found in the prior version of the Code.
