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There's no relief in sight from rising health-care costs. Hewitt Associates, of Lincolnshire, IL, projects that health care costs will increase 15.4% this year, following an average rate hike last year of 13.7%. If this trend continues, Hewitt estimates, health coverage cost will double over the next 5 years. Law firms coast-to-coast therefore continue to search for their own magic bullets. While doing so, however, they're being careful not to shoot themselves in the foot. Firms see a strong benefits package as critical to retaining and recruiting employees, and therefore take a largely conservative approach to managing health-care costs - trying to maintain generous levels of coverage while minimizing the financial blow to employees.

In its continuing effort to respond to high profile fraudulent financial reporting and to strengthen safeguards against fraud and the misappropriation of funds, the American Institute of Certified Public Accountants (AICPA) has issued Statement on Auditing Standards 99: Consideration of Fraud in a Financial Statement. Generally known as SAS 99, the new standard imposes additional requirements on the audit process and applies to audits of 2003 financial statements for both public and private companies. As in-house corporate counsel, you can be affected by this new measure in several ways, most notably in the information you may be required to gather and the questions you may be expected to answer. In addition, certain information gathered under SAS 99 can help public companies meet requirements imposed by the Sarbanes-Oxley Act.

Approximately 3 years ago in <i>Danis v. USN Communications</i>, Magistrate Judge Schenkier stated: "At some point, a party and/or its attorneys must be held responsible for knowing what documents are discoverable and where to find them." He prefaced this statement by reasoning that we cannot create a loophole in the discovery rules by allowing counsel to argue: "Judge, we just didn't know those tapes existed." <BR>Case law in the past 3 years, most notably in <i>Zubulake v. UBS Warburg</i>, decision, has expanded a corporate counselor's Danis duty to "know thy e-data." <i>See also Zubulake v. UBS Warburg</i>. Counsel representing today's 21st century companies need to know more than simply where electronic evidence resides; they also have a duty to know if that data is accessible (<i>ie</i>, how easily it can be restored and produced) and how much the whole process is going to cost.

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Recent developments of interest to corporate counsel.

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The Employee Benefit Security Administration of the Department of Labor (DOL) has recently announced a more liberal view toward charging tax-qualified retirement plan expenses against the accounts of participants in 401(k), ESOP, and other defined contribution plans. This article provides a brief overview of the kinds of expenses that plans may pay and then explains how the new DOL guidance provides employers and plan sponsors with greater flexibility in allocating these expenses to participant accounts.

A very important lease provision, particularly from the tenant's perspective, is an effective subrogation waiver. The subrogation waiver essentially provides that in the event of a casualty that is caused by the negligence of one party to a lease, the negligent party is nonetheless not liable for the resulting damage to the extent that the damage is either covered by applicable insurance proceeds or to the extent it would have been covered by insurance proceeds had the other party to the lease maintained the insurance as required under the lease. Subrogation waivers provide, in effect, that both parties to the lease benefit from the casualty insurance maintained by either party. This concept is especially fair to the tenant in net lease situations where the tenant pays its pro rata share of the landlord's casualty insurance. Landlords also benefit from a mutual subrogation waiver to the extent that the tenant's leasehold improvements, fixtures, and personal property are damaged or destroyed due to the landlord's negligence.

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What could be simpler, more mundane, and less worthy of a lawyer's attention than lease provisions dealing with a business term &mdash; the square footage of the premises? However, a lawyer's failure to define the agreed-upon method of its measurement properly in the lease can lead to headaches and even litigation as the lease term progresses. Because measurement standards are not mandatory or legislated, the parties are free, depending on their relative market positions, to agree upon the method to be used in the lease. Often the measurement of square footage is referred to in terms that are imprecise and have no legal definition. Depending on the area where the building is located, measurement methods may vary and a landlord may have its own method that is a modified form of a particular standard of measurement. Without a specified measurement standard and the right to confirm a landlord's measurement, a tenant could end up paying more for its space than it intended (or budgeted); and may later find itself unable as a practical matter to contest a landlord's measurement of an expansion space.

Have you ever sent a fax containing a lease agreement, listing agreement, property informational brochure or estoppel certificate? What about a fax with a purchase order, invoice or a request for a proposal from a vendor of property-related services or goods? In the leasing world, who hasn't? At the same time, have you ever considered obtaining prior written consent from the recipient to authorize your transmission of that fax? In many, if not all, cases, the answer is likely to be "who has?" In the not-too-distant future, that answer probably will need to be changed. Read on to find out why &mdash; and whether you will be among the crowd that must obtain that prior authorization before turning on your fax machine.