The Lawletter Vol 42 No 4

Jim Witt, Senior Attorney, National Legal Research Group

            The one area of taxation that is recognized on both sides of the political aisle as badly needing reform is the federal corporate income tax.  One fact that signals the need for reform is that the maximum tax rate for the ordinary income of U.S. corporations is at 35% on taxable income exceeding $10 million (Internal Revenue Code of 1986, § 11(b)(1)(D)), among the highest marginal rates in the world (e.g., Ireland 12.5%; Germany 29.65%). As a result, and as prominently reported in recent months, a number of U.S. corporations (notably Apple and Alphabet (Google)) have shifted the locus of intangible assets and/or corporate headquarters to countries with favorable tax rates (a procedure known as a "corporate inversion"). United States corporations are subject to federal income tax on their global profits, but by not repatriating their profits attributable to a foreign situs, those corporations avoid paying taxes by simply not bringing those profits back to the United States.

            The central feature of the current proposals for corporate income tax reform is to change the incidence of the tax from one on the corporation's profits to a tax on the corporation's cash flow, regardless of the location of the corporation's headquarters or intangible assets. The tax, characterized as a "destination cash flow tax with border adjustment" or a "border adjustment tax" (“BAT”), would eliminate any benefit now gained by a corporation's parking its profits in a favorable tax jurisdiction (the tax would be imposed in the year of the sale, not in the year of the repatriation of profits). It is the border adjustment feature of the tax that becomes the key. The determining factor becomes where the corporation's products are sold.

The Lawletter Vol 42 No 4

Amy Gore, Senior Attorney, National Legal Research Group

          Most attorneys encounter situations in which a client does not pay the legal fees due and owing. There may, or may not, be a dispute over services rendered. Every state bar association has some form of fee dispute resolution program, yet some clients do not participate, leaving the attorney few options. At some point it becomes evident that the attorney-client relationship has terminated and the relationship with the prior client becomes adversarial in nature. The question thus arises: If the attorney pursues an action against the client to recover the fee, and obtains a judgement against a former client, may the attorney disclose confidential information obtained during the course of the representation while seeking to execute on that judgment?

          Model Rule 1.6(b) allows an attorney to disclose information to "establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client; to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or to respond to allegations in any proceeding concerning the lawyer's representation of the client."

The Lawletter Vol 42 No 4

Andrea Stokes, Senior Attorney, Florida Legal Research Group

          Whether there exists a limitation on refiling an action after more than one involuntary dismissal without prejudice, particularly in the mortgage foreclosure context, has been a source of some confusion. Florida Rule of Civil Procedure 1.420, addressing involuntary dismissals, provides that

[u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

Fla. R. Civ. P. 1.420(b). To ensure that an involuntary dismissal does not operate as an adjudication on the merits, Rule 1.420(b) requires that the order of dismissal expressly state that the dismissal is without prejudice.  See id. R. 1.420 cmt. ("Dismissals except a voluntary one constitute an adjudication on the merits unless the court provides otherwise." (emphasis added)).  So it is the odd occasion indeed where a trial court involuntarily dismisses without prejudice a second or third time after a motion or sua sponte under Rule 1.420(b). The question may then arise whether a plaintiff can continue to take "bites at the apple" after a dismissal or whether the number of bites is limited. 

The Lawletter Vol 42 No 3

Brad Pettit, Senior Attorney, National Legal Research Group

            "[A]n implied waiver of nonperformance under a contract will be established by a party's conduct inconsistent with the assertion of the right to the performance allegedly waived, or by conduct that indicates that strict compliance with the contract will not be required, provided that the conduct manifests the requisite intent to waive the right to performance or has induced the requisite reliance by the other party." 13 Williston on Contracts § 39:30 (4th ed.) (Westlaw current through May 2015 Update) (footnotes omitted). For example, a lessor who regularly accepts late payments may establish a course of performance or "an order of business," which operates to waive, as to future payments, a provision making time of the essence and to preclude that party from enforcing a forfeiture. Id. It is also a principle of contract law that "[u]nless otherwise agreed, a course of dealing between the parties gives meaning to or supplements or qualifies their agreement." Restatement (Second) of Contracts § 223 (1981) (Westlaw current through Oct. 2016 Update).

The Lawletter Vol 42 No 3

Alistair Edwards, Senior Attorney, National Legal Research Group

            A real estate owner's contract with a realtor may be required to be in writing and signed by the owner in order to satisfy the statute of frauds. As in many States, that is certainly the rule in California. As the California Supreme Court stated nearly 30 years ago, "[a] broker's real estate commissions agreement is invalid . . . unless the agreement or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by the party's agent." Phillippe v. Shapell Indus., 43 Cal. 3d 1247, 1258, 743 P.2d 1279, 1283 (1987) (internal quotation marks omitted).

            But, what happens when there is more than one owner of the property (co-owners) and only one of the owners signs the broker's contract? Is that contract biding on the nonsigning co-owner? Recently, in Jacobs v. Locatelli, 8 Cal. App. 5th 317, 213 Cal. Rptr. 3d 514 (2017), the court wrestled with this exact issue.

The Lawletter Vol 42 No 3

John Stone, Senior Attorney, National Legal Research Group

            Largely in response to mass shootings in places such as Newtown, Connecticut, Aurora, Colorado, Fort Hood, Texas, and Virginia Tech, in 2013, the General Assembly of Maryland enacted the Firearm Safety Act ("FSA"), which bans military-style rifles and shotguns (referred to as "assault weapons") and detachable large-capacity magazines. Affirming in relevant part a decision by the United States District Court for the District of Maryland, Kolbe v. O'Malley, 42 F. Supp. 3d 768 (D. Md. 2014), the Fourth Circuit Court of Appeals has upheld the FSA against a constitutional challenge based on the Second Amendment right to bear arms.  Kolbe v. Hogan, 849 F.3d 114, 2017 WL 679687 (4th Cir. Feb. 21, 2017).

            The appellate court concluded that the assault weapons and large-capacity magazines that were banned by Maryland's FSA were not protected by the Second Amendment; they were most useful in military service, in that they were designed to kill or disable the enemy on a battlefield, and they had a capability for lethality far beyond that of other firearms. This "most useful in military service" concept describes a distinction drawn by the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 627 (2008) ("It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause [concerning militias]. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.").

The Lawletter Vol 42 No 3

Paul Ferrer, Senior Attorney, National Legal Research Group

            Rule 34 of the Federal Rules of Civil Procedure permits a party to request the responding party, within the scope of Rule 26(b), to produce for inspection designated documents and electronically stored information. See Fed. R. Civ. P. 34(a)(1). The request for production must, among other things, "describe with reasonable particularity each item or category of items to be inspected." Id. R. 34(b)(1)(A).

            The responding party generally must respond within 30 days after being served with the request for production. Id. R. 34(b)(2)(A). Effective December 1, 2015, Rule 34(b)(2)(B) was amended to require that for each item or category of items requested, "the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons." Id. R. 34(b)(2)(B) (emphasis added).

     The Vanguard Law Magazine recently profiled the National Legal Research Group in its national magazine, focusing on the attorneys that make up the firm and the specific benefits NLRG provides to its attorney clients. The staff of 35 attorneys assists attorneys in all 50 states and does some international work. President John F. Buckley explained that the key to NLRG’s success is the deep experience of the staff—NLRG attorneys typically have 20-25 years of experience, working on projects in multiple jurisdictions. That experience allows NLRG attorneys to act as consultants for its clients, helping attorneys determine if they have a case, and then assisting with drafting of pleadings, arguments, and briefs. Since the firm was founded nearly 50 years ago, NLRG attorneys have worked on over 173,000 cases, in every jurisdiction. In additional to litigation-related work, many NLRG attorneys write books on various area of the law, including family law, local government, and human resource law.  Read the full story at https://www.vanguardlawmag.com/case-studies/national-legal-research-group/.

The Lawletter Vol 42 No 2

Fred Shackelford, Senior Attorney, National Legal Research Group

      Can a suit against the federal government be maintained even though it would be time-barred under state law? That was the issue in a medical malpractice action arising in Louisiana. In Bagley v. United States, No. 8:16-CV-30, 2016 WL 6082023 (D. Neb. Oct. 18, 2016), the plaintiff underwent surgery at an Air Force base in Louisiana in 1997. Over the next 15 years, he experienced pain in the area of his right groin. In 2013, an x-ray revealed that a metallic object had been left in the plaintiff's body during the 1997 surgery. Within two years after discovering the object, the plaintiff filed an action in Nebraska against the United States under the Federal Tort Claims Act ("FTCA").

     The government moved to dismiss on the ground that the action was time-barred under Louisiana law, where the cause of action arose. Under a Louisiana statute, La. Rev. Stat. Ann. § 9:5628, medical malpractice actions must be filed within one year after the negligent act or omission, or of discovery thereof, but in no event later than three years after the negligent act or omission occurred. Under the FTCA, there is a two-year limitations period, which accrues in medical malpractice actions when the claimant discovers or reasonably should have discovered the alleged malpractice.

The Lawletter Vol 42 No 2

Lee Dunham, Senior Attorney, National Legal Research Group

     Tax-related identity theft occurs when someone uses a taxpayer's stolen Social Security number to file a fraudulent refund. Often, the taxpayer is not aware of the identity theft until he or she files a valid tax return and is notified by the Internal Revenue Service ("IRS") that multiple returns have been filed in his or her name. Its incidence, like that of other forms of identity theft, has increased in recent years due to hacking and phishing scams that have enabled cybercriminals to obtain far-reaching access to taxpayers' personal data, including Social Security numbers.

     The schemes of the criminal defendants described in United States v. Philidor, 717 F.3d 883 (11th Cir. 2013), and United States v. Gonzalez, No. 13 CR 154 RWS, 2014 WL 316984, at *2 (S.D.N.Y. Jan. 27, 2014), are illustrative of the nature and scope of the problem.