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Articles, Books & Whitepapers

A Primer on the Kentucky Opportunity Zones Initiative

Stites & Harbison, PLLC, July 26, 2018
by James C. Seiffert and Jameson M. Seiffert

The Tax Cuts and Jobs Act, Pub. L. 115-97 (the “Act”), signed into law on December 22, 2017, introduced the Opportunity Zone program (Internal Revenue Code §1400Z-1 and §1400Z-2) which provides a new federal framework for stimulating private investment in economically distressed areas across the country.  In simple terms, IRC Section 1400Z-1-2 allows qualified U.S. investors to defer and potentially avoid tax on unrealized capital gains if they reinvest their unrealized capital gains in a qualified Opportunity Fund. The Fund then invests its capital, as equity, in a qualified Opportunity Zone Business located in a qualified Opportunity Zone.  By targeting investment incentives to underserved census tracts, the program is intended to create jobs, drive economic growth, and improve the quality of life for the residents. 

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Hospitals get a regulatory and statutory exemption on ownership and licensure of physician practices

Medical News, May 28, 2018
by Janet A. Craig

Certificate of Need (CON) has been both a blessing and a burden for hospitals as they have adapted to some of the biggest changes in the healthcare market. While CON laws can assist a hospital in opposing competitors coming into its home territory, recruiting and retaining physicians has often required many hospitals including rural hospitals to employ the physicians on their medical staffs.

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Rapid changes in the Chinese legal system, an increasingly attractive venue for IP litigation

IPWatchdog, May 7, 2018
by Jeffery P. Langer, Ph.D.

For many years, foreign companies were reluctant to seek and enforce intellectual property protection in China.  A combination of challenging litigation with low damages, the lack of ability to effectively enforce judgments, allegations of protectionism by the courts; a lack of ability to patent certain subject matter, a lack of transparency on legal matters and other factors made China a less desirable jurisdiction.  

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What’s New for the Environment? - A Peek at the 2017 Regular Session

The Goods, a publication of the Kentucky Association of Manufacturers, March 2017
by Jennifer J. Cave

At the time of press, the Kentucky General Assembly had completed 28 of its 30 legislative days reserved for the 2017 Regular Session.  The General Assembly is currently in Veto Recess, when passed bills go the Governor for review and consideration of veto.  The legislators return for the final two legislative days, March 29 and 30, before sine die adjournment.   With a break in the action, it’s a good time to take a look at new legislation affecting businesses and the environment in Kentucky. 

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New EPA Risk Management Plan Amendments Face ‘Trumped’ Future

The Goods, Kentucky Association of Manufacturers, January 2017
by Jennifer J. Cave

Days before President Trump was sworn in, the U.S. Environmental Protection Agency (EPA) published amendments to the Risk Management Plan (RMP) rule, which implements Section 112(r) of  the Clean Air Act.  (82 Federal Register 4594, January 13, 2017).  The RMP rule requires facilities that use extremely hazardous substances to develop Risk Management Plans.  The Plans help local emergency response personnel prepare for and respond to chemical emergencies. 

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U.S. Supreme Court Adopts Implied False Certification Theory of Liability Under False Claims Act

Louisville Bar Briefs, a publication of the Louisville Bar Association, November 2016
by Joseph L. Hardesty and Ozair M. Shariff

On June 16, 2016 the United States Supreme Court ruled that government contractors can violate the Civil False Claims Act (See 31 U.S.C. §3729 et seq.) under the theory of “Implied False Certification.”  It is a violation of the False Claims Act to knowingly present a fraudulent or false claim for payment to the Federal Government.  

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EPA delays issuance of final hazardous waste pharmaceuticals rule

Medical News, November 2016
by Jennifer J. Cave

The United States Environmental Protection Agency’s (EPA) final hazardous waste management standards for waste pharmaceuticals will not be published in 2016 as previously projected.  EPA received nearly 200 comments on its Proposed Management Standards for Hazardous Waste Pharmaceuticals Rule, 80 Federal Register 58014 (September 25, 2015).  EPA is working to address the policy implications raised in the comments before it publishes the final rule now expected in 2017.

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The Drone Wars: Environmental Edition

The Goods, Kentucky Association of Manufacturers, November 2016
by Jennifer J. Cave and J. Clarke Keller

In recent years, the use of unmanned aircraft systems ("UAS" or drones) has exploded. Although hobbyists fly drones for pleasure, businesses are developing new uses for drone technology daily. Most drones sold for both hobby and commercial use are equipped with a video camera mounted below the drone. These cameras have allowed companies to use drones as a safe, low-cost way to conduct inspections without having to send workers to scale towers or hire helicopters, which can cost thousands of dollars an hour to operate.

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Build a Better Machine

The Goods, Kentucky Association of Manufacturers, July 2016
by Ian T. Ramsey and Sarah Cronan Spurlock

We have read countless articles on data security, but not one about having a good relationship with the people you entrust with your data security.  There seems to be a misconception that data security is something not easily understood or practiced, and so should be left to the skills of a limited few who work in isolation to “fix” the problem.  This is not realistic.  Data security is a daily issue requiring a high level of trust and constant communication between your company and those people.  It is a work in progress.  A marathon as they say, not a sprint.  And you need hard working people on your team.

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How Are Banks Affected by the Employment Executive Orders?

Kentucky Banker Magazine, May 2016
by Richard A. Vance

While many legislative proposals have stalled in Congress, President Obama has moved forward with a variety of labor and employment initiatives by means of Executive Orders. Such orders are limited to the regulation of "federal contractors" and by their own terms. Whether banks and their employees are covered depends on a variety of factors.

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Banking on Industrial Hemp

Kentucky Banker Magazine, April 2016
by Richard A. Vance

Colorado has legalized marijuana for medical and recreational use. Kentucky has legalized the production of industrial hemp. Both substances are derived from the same species, cannabis sativa l., which Congress has declared unlawful under the Controlled Substances Act (CSA) [1].

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Hidden costs of chips: Starting in October, credit card companies may no longer pick up the tab for fraudulent transactions

Medical News, September 8, 2015

No, not potato chips, micro-chips! Beginning October 1, 2015, merchants and card-issuers may be liable for fraudulent transactions, depending on who’s the #LeastTechSavvy. At present, credit card companies, for the most part, cover the costs of counterfeit transactions when they occur over their networks. However, after October 1, Visa, MasterCard, Discover and American Express have announced that whichever party has not updated their technology to meet the new EMV or Chip and Pin cards will be responsible for the cost of the fraudulent transaction.

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Extreme Sports Challenge the Courts

Product Liability Law & Strategy, August 2015
by John L. Tate and Emily Larish Startsman

Extreme sports are increasingly popular in the U.S., and participation is growing. "Extreme" means different things to different people.  But participation is not only up in sports such as mountain biking and snowboarding, more people also are bungee jumping, hang gliding, wind surfing and rock climbing. As more Americans become involved in hazardous recreation, the number of personal injuries is also rising, especially among minors. With injuries comes litigation, of course, and the popularity of extreme sports raises challenging questions of liability.

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Compelling Discovery for Foreign Arbitrations

Products Liability Litigation Newsletter, American Bar Association, August 10, 2015
by J. Brittany Cross Carlson

In today’s global economy, product manufacturers resource materials and components, sell their products, and expose themselves to potential litigation in countries far from the manufacturer’s home base. While clients may understand—though they may not like—their obligations to participate in discovery as a party to a products liability dispute, they also may be subject to the same discovery requirements even though they are not a party in matters pending in foreign jurisdictions. One avenue to compel discovery in the United States for use in proceedings in foreign jurisdictions is 28 U.S.C. section 1782.

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6th Circuit Joins Majority of Circuits by Taking Narrow View of FCA Public Disclosure Bar

Medical News, April 2015
by Ozair M. Shariff

During February of this year, the 6th Circuit Court of Appeals joined the majority of circuits and held that the disclosure of information to the government during an audit or investigation does not constitute a “public disclosure” and subsequently does not create a jurisdictional bar to a qui tam action under the federal False Claims Act (“FCA”). The Court’s decision in United States ex rel. Whipple v. Chattanooga-Hamilton County Hospital Authority allowed the plaintiff to proceed with his case on remand and has the potential to invite more FCA qui tam actions given the narrow interpretation given to the public disclosure bar.

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Hiring, firing and intellectual property

HR Notes, Nashville Area Chamber of Commerce, April 1, 2015

HR can be an important gatekeeper in protecting a company's intellectual property – for employees and contractors alike. Intellectual property includes trade secrets and proprietary information (such as customer lists, formulas and manufacturing processes), copyrights (such as software, photographs, videos, web content and manuals), and patentable inventions (such as a medical device, machine, chemical compound, business method or even a product design).

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Lawyers with Big Hearts

Tennessee Bar Journal, January 2015
by Barry Kolar

Rebecca McKelvey Castañeda was awarded the Harris Gilbert Pro Bono Volunteer of the Year award for 2014 by the Tennessee Bar Association.

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Sustainability and Biofuels

Sustain, Issue 31, Fall/Winter 2015, Kentucky Institute for the Environment and Sustainable Development, UofL, December 2014
by W. Blaine Early III

As the saying goes, "Be careful what you wish for; you might get it." This describes the current state of biofuels. The appealing concept of biofuels is supported by well-meaning environmental advocates, business interests, and governmental policy, but if we don't make wise choices, then the reality may not be all that we wished for.

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The changing face of Kentucky’s long-term care

Medical News, October 13, 2014
by K. Kelly White Bryant

In 1999, by a six to three majority, the United States Supreme Court issued a seminal decision in Olmstead v. L.C., which involved the application of Title II of the Americans with Disabilities Act of 1990 (ADA). Olmstead concerned several intellectually disabled individuals (“individuals”) who were admitted to a Georgia hospital but not timely discharged from the hospital although their treatment professionals agreed that they could be cared for safely in the community.

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Your Company’s Role in Public Policy Battles

The Corporate Board, September/October 2014
by Ellen Tauscher, Patrick Dailey

The voice of business in political and regulatory issues has been a hot button topic since the U.S. Supreme Court's Citizens United decision. Public policy battles will continue whether your corporation is active or not, and avoiding the debate may not be an option. What does your board need to know about the company's involvement in PACs, lobbying, and all those other messy necessities of modern policital life?

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Upcoming Changes to Federal Rules of Civil Procedure: Modernizing Scope of Discovery and Clarifying Consequences of Failure to Preserve

Louisville Bar Association’s Bar Briefs, September 2014

If you practice in federal court, pay close attention to the changes to the Federal Rules of Civil Procedure arriving in 2015.  Implementing the so-called “Duke Rules Package” developed at a 2010 Federal Rules Advisory Committee meeting held at Duke University, upcoming changes recommended by the Advisory Committee focus on three main areas:  (1) early judicial case management; (2) the scope of discovery and (3) litigants’ failure to preserve electronically stored information.

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Breach of Contract for Wrongful Death

Georgia Casenote, website of the Construction Litigation Committee of the Litigation Section of the American Bar Association
by R. Daniel Douglass

This article appeared as a Georgia Casenote on the website of the Construction Litigation Committee of the Litigation Section of the American Bar Association and is reprinted with their permission.

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The Supreme Court Redefines 'Exceptionality' and Lowers Bar for Recovery of Attorney Fees in Patent Suits

Business Law Today, American Bar Association, Vol. 23, Issue 10, June 2014
by Joel T. Beres and Melissa Hunter Smith

Patent infringement litigation is expensive, and the cost of that litigation can make or break a company. By the same token, even our nation’s largest and healthiest companies are spending millions of dollars on arguably meritless patent litigation brought by non-practicing entitites and, at the end of the case, they have nothing to show for it but a hefty legal bill. The Patent Act allows a successful party to recover its attorney fee expenses from the other party under certain circumstances. 

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Differing Site Conditions:

Tennessee Road Builder, March/April 2014

A February 11, 2014, opinion from the United States Court of Appeals for the Federal Circuit adds further support for contractors’ reliance on owner provided geotechnical data.  The decision dealt, in part, with the Differing Site Conditions clause in the federal contract, 40 CFR 52.236-2.  Since many other standard contracts employ similar language in their Differing Site Condition clause, the decision may have some impact beyond federal contracts

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