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EPA Proposes Amendments to NSPS for Grain Elevators

by Phillip R. Bower, posted Tuesday, November 25, 2014

As part of a required Clean Air Act review process, the U.S. Environmental Protection Agency (EPA) recently proposed amendments to the new source performance standards (NSPS) for grain elevators found at 40 C.F.R. Part 60, Subpart DD. EPA is accepting comments on the proposal through Dec. 22, 2014. Read more...


EPA Publishes Two Engine-related Items to Federal Register

by Phillip R. Bower, posted Friday, October 31, 2014

The U.S. Environmental and Protection Agency (EPA) recently published two items in the Federal Register related to engine regulations. The first notice addresses mobile engines and provides some new minimum standards on maintenance, as well as more flexibility for the use of auxiliary emission control devices in emergency vehicles and in nonroad equipment. The second notice addresses a reconsideration of rules related to the use of emergency stationary reciprocal internal combustion engines (RICE) in non-emergency situations. Read more...


More Flexibility for Nonroad Diesel Engine Replacement and Technical Hardship

by Phillip R. Bower, posted Tuesday, June 10, 2014

Under the U.S. Environmental Protection Agency’s (EPA) Tier 4 emission standards rule, nonroad diesel equipment manufacturers are required to install engines that meet current emission standards in their equipment unless an exemption applies. The EPA recently amended the Tier 4 rule to provide for additional flexibility under two of the exemptions – the replacement engine exemption and the technical hardship provisions under the Transition Program for Equipment Manufacturers (TPEM). See 79 Fed. Reg. 7077 (Feb. 6, 2014). Read more...


Outsourcing Review: PCI Data Security Standards for Mobile Payments

by Andrew J. Schlidt, posted Monday, June 18, 2012

The mobile payment industry is exploding and the framework of regulations governing mobile payments is evolving at a similar speed. Gartner, Inc. projects that worldwide mobile payment transaction values will surpass $617 billion and 448 million users by 2016. In recognition of the revolution in mobile payment solutions, on May 16, 2012, the PCI Data Security Standards Council published guidance on best practices for securely accepting payments via mobile devices – “At a Glance: Mobile Payment Acceptance Security.”  
Merchants that accept credit card payments through participating brands such as American Express, Discover, MasterCard, and Visa are required to implement security programs in compliance with the PCI Data Security Standards. All merchants engaged in mobile payment acceptance are well-advised to review this newly released guidance for compliance with PCI Data Security Standards in the context of mobile payments. 
Outsourcing Review provides commentary on legal developments affecting companies engaged in technology outsourcing (ITO) or business process outsourcing (BPO).


Outsourcing Review: 2012 Working Paper on Outsourcing IT to the Cloud

by Andrew J. Schlidt, posted Tuesday, June 12, 2012

Companies continue to move IT operations to the cloud given the efficiencies and convenience offered by cloud environments. While the cloud is often seen as a practical technological and financial solution by CIOs and CFOs, it conversely raises liability concerns for company risk managers, compliance officers, and in-house lawyers. An International Working Group on Data Protection in Telecommunications recently published a Working Paper in April 2012 to help this latter group wrap its arms around the privacy and data protection issues arising from cloud computing. The Working Paper contains guidance on 44 “best practices” that should be of interest to all cloud customers, especially those with operations, customers, or employees located in the European Union.
Outsourcing Review provides commentary on legal developments affecting companies engaged in technology outsourcing (ITO) or business process outsourcing (BPO).


Last Best Chance to Report Foreign Bank Accounts and Comply with FBAR Filing Requirements

by Douglas A. Pessefall, posted Thursday, April 19, 2012

Foreign bank accounts and assets are increasingly common in today’s world. Such accounts may be legally opened and used by persons who live, work, conduct business, own real estate, study or play abroad (not just alleged “tax cheats”). However, law imposes a number of reporting requirements (some new and some old) on persons who have an interest in or authority over such accounts as well as significant criminal and/or civil penalties for noncompliance. The Internal Revenue Service (IRS) continues to make compliance with those reporting requirements a high priority enforcement item and, within the next two years, expects to receive information directly from foreign financial institutions on accounts owned by persons. The information provided by those institutions will be cross-checked with IRS records to determine whether the accounts were properly reported. This article identifies two of those reporting requirements and explains how noncompliance can be corrected. To view the full article, click here.


Outsourcing Review: A Case of “Text Spam” and Vicarious Liability for Vendor Acts

by Andrew J. Schlidt, posted Tuesday, March 13, 2012

Many companies outsource portions of their marketing program to third party marketing firms. With the continued popularity of text messaging, marketing firms often encourage clients to enhance brand awareness through multiple channels of electronic communication, including text messaging.

Keep in mind that the sending of unauthorized, automated commercial text messages likely violates the Telephone Consumer Protection Act. In a recent “text spam” class action case before the U.S. District Court for the Southern District of California (In re Jiffy Lube International Inc., S.D. Cal., No 11-2261, 3/8/12), six named plaintiffs claimed that the defendants violated the Act for sending unauthorized, automated text messages to cell phones. One of the defendants sought dismissal from the case on grounds that its third party marketing firm sent the messages. The court rejected this particular defendant’s argument and ruled that the defendant should not be relieved of liability under the Act “merely because it hired a different firm to send advertisements to its customers.”

This ruling is a reminder that companies may be held vicariously liable for the acts of their outsource providers. Companies are well-advised to address compliance with laws and allocation of liability for non-compliance in their underlying outsourcing agreements.

Outsourcing Review provides commentary on legal developments affecting companies engaged in technology outsourcing (ITO) or business process outsourcing (BPO).


Beware of Unofficial Solicitations Regarding Your Trademarks & Domain Names

by Melinda S. Giftos, posted Wednesday, March 07, 2012

Have you recently received one or more official-looking notices or invoices relating to your trademarks, but were unsure who the notice was actually coming from? Does the notice indicate for a small fee, you can obtain registration or monitoring services? Were you surprised the notices were sent to you directly from the trademark office rather than through your attorney? If you answered yes to these questions, you have probably been the recipient of one or more trademark registry scams. Read more...


U.S. Patent and Trademark Office Launches America Invents Act Online Guide

by Michael J. Cronin, posted Wednesday, September 28, 2011

On September 16, 2011, President Obama signed the America Invents Act (AIA) into law. The AIA makes numerous changes to U.S. Patent Laws. To help with the transition, the U.S. Patent and Trademark Office (USPTO) has created an on-line guide that contains information about the changes the Act will bring. Some of those changes, such as patent fees, went into effect on Monday, September 26, 2011.  Other changes will fall into place over the next twelve to eighteen months. The site also includes a timeline that shows some major highlights in the coming year.  Finally, the USPTO website provides the opportunity to submit comments on the AIA and the agency’s implementation of the law.


President Obama Signs Leahy-Smith America Invents Act

by Michael J. Cronin, posted Friday, September 16, 2011

Earlier today President Obama signed the Leahy-Smith America Invents Act (AIA) into law, just several days after the USPTO issued the eight millionth patent. The AIA represents the most comprehensive change to U.S. Patent Law in more than 50 years. While many provisions do not take immediate effect, the provision mandating a 15% increase in many USPTO fees takes effect on September 26, 2011. If you have an application nearly ready to be filed, a patent maintenance fee due, or an issue fee that can be paid, taking action by September 26, 2011 will avoid the 15% fee increase.


President Obama to Sign AIA

by Michael Cronin, posted Wednesday, September 14, 2011

As reported by Fox news, President Obama will sign the "America Invents Act" Friday with an event in the Washington, DC area. Speaking to reporters on Air Force One, White House Press Secretary Jay Carney said, "The America Invents Act passed with the president's strong leadership after a decade of effort to reform our outdated patent laws. Patent reform is an issue both the White House and Congress have pushed for some time. The America Invents Act, previously known as the Patent Reform Act of 2011, was passed by the House in June with large bipartisan support. The U.S. Senate approved the House version of the bill last week voting 89-9.


It is Almost Time to Block Your Trademark From the .XXX Domain Registry

by Melinda S. Giftos, posted Wednesday, August 24, 2011

This year, the Internet Corporation for Assigned Names and Numbers (ICANN) approved a new .XXX top level domain (TLD) for the online adult entertainment industry. This is great news for the porn industry. However, companies in other industries aren't so excited about the prospect of having to register their trademarks with .XXX domain names, or alternatively, potentially allowing third parties to register their trademarks with the .XXX TLDs and then link the domain to porn sites. But all is not lost, and ICANN has set up a procedure for trademark owners to protect their marks.
The .XXX domains will become available in stages. From September 7, 2011 through October 28, 2011, concurrent "sunset" periods will run whereby owners of registered trademarks both inside and outside the adult entertainment industry may take action to reserve .XXX TLDs corresponding to their registered trademarks. One of the sunset periods, "Sunset B," is specifically geared toward non-adult industry owners of registered trademarks. During this time, trademark owners can reserve their trademark.xxx to prevent others from registering and using the domain name. However, to be eligible, the owner must hold a valid US or foreign trademark registration for the exact mark that it is seeking to block as of September 1, 2011. The owner must also pay a one-time fee, which has not yet been finally determined but is expected to be $200-$300. Once filed,, the blocked .XXX domain name will link to a standard page stating that the domain has been reserved, and the trademark owner will not be listed in WHOIS in connection with the domain and will not actually own the registration.
After the sunset periods end, general availability for all .XXX TLDs will begin on December 6, 2011.
If you have registered trademarks you would like to block from the .XXX TLD, or if you have further questions, please contact Mindi Giftos at (608) 234-6076 or mgiftos@whdlaw.com for more information.


Employers and Health Reform

by Barbara J. Zabawa, posted Thursday, May 26, 2011

On Thursday, May 19, I presented to the Residential Services Association of Wisconsin. As has been typical lately, I spoke about health reform, including Accountable Care Organizations and the legal challenges to the Affordable Care Act (ACA).
The audience included smaller employers who operated group homes for individuals with disabilities. Although they were intrigued by the idea of Accountable Care Organizations, what they were more concerned about was the impact of the ACA on their ability to survive as a business. I discussed Wisconsin’s Health Insurance Exchange ideas, the individual mandate and expectation that everyone have health insurance under the ACA. The audience was worried that, as small employers, they would not be able to afford to provide health insurance to their employees as the ACA requires them to do.
Because of limited time, I was not able to explore each facet of the ACA to help the audience understand its total impact on them; however, this blog might help answer some of the questions that were not addressed in full. Included in this blog is a summary from the Congressional Research Service regarding employer penalties under the ACA. According to Page 1 of the summary, which references §§ 1513 and 10106 of the ACA, only “large employers” are subject to the penalty. A large employer is defined as having “at least 50 full-time employees during the preceding calendar year.” “Full-time employees” are defined as those working 30 or more hours per week.
Also included is a PowerPoint presentation I gave in January 2011 to the Society of Human Resource Managers. This presentation provides examples on how an employer might calculate the penalty for not offering health insurance to its employees.
As one can see on slides 45-48, the employer does not pay a penalty for the first 30 employees who do not receive health coverage through their employer. The penalty is calculated after the employer exceeds the 30 employee threshold.
As a result, small employers (those with fewer than 50 employees) would not be subject to a penalty if they failed to offer “minimum essential benefits” to their employees. In 2014, those employees could obtain health insurance through the Insurance Exchange. As one can also see from the attached slides, it is not clear what Wisconsin’s Insurance Exchange will look like in 2014.


Accountable Care Organizations: Will They Live Up To The Hype?

by Barbara J. Zabawa, posted Tuesday, May 17, 2011

On Thursday, May 11, 2011, I had the pleasure of talking to the Wisconsin Medical Group Management Association about Accountable Care Organizations (ACO). It was truly a pleasure to discuss what I believe to be the future of health care delivery. I answered the question: “Will ACOs live up to the hype?,” in the affirmative. I believe that ACOs offer a sensible way of providing care in light of the forthcoming changes from the Patient Protection and Affordable Care Act, should the U.S. Supreme Court find the Act constitutional.
Regardless of the U.S. Supreme Court’s forthcoming decision, however, I believe the ACO movement is still worth health care stakeholder consideration.
During the presentation I described the current landscape of negotiations between providers and payers, and informed the audience as to how ACOs and other parts of the Affordable Care Act will ease the current tensions and help these stakeholders work toward the common goal of providing patient-centered care. Because insurers will have less flexibility in increasing premiums, insurers will not be as willing to accommodate provider cost increases. Therefore, providers and payers will be forced to find alternative ways to work with one another. I believe an attractive option is through the ACO vehicle.
The ACO holds the promise of delivering appropriate, seamless care to patients. The ACO concept embodies the other, much less-discussed piece to the Affordable Care Act that strives to improve health care quality and efficiency.
I invite you to look at my presentation materials on ACOs. I am certain there will be more blog postings on this topic soon.


In re Helen E.F.: Good Intentions Gone Wrong?

by Barbara J. Zabawa, posted Monday, May 16, 2011

“One way to measure the greatness of our society is to look at how we treat our weakest members, such as our growing population of people afflicted with Alzheimer’s.” That is a quote from a recent Wisconsin Court of Appeals decision that, although well-intended, may ultimately harm patients suffering from Alzheimer’s disease and related dementia disorders. On April 27, 2011, the Wisconsin Court of Appeals issued an opinion concluding that people suffering from dementia and Alzheimer’s disease should not be subject to Chapter 51 commitments because such conditions are not “treatable.”  In re Helen E.F., 2010 AP 2061 (Ct. App. April 27, 2011). In that case, Helen E.F., an 85-year-old woman with Alzheimer’s dementia, was committed to St. Agnes Hospital pursuant to Wis. Stat. ch. 51 because of her disruptive behavior. Id. at ¶ 9. Three days later, a court commissioner conducted a probable cause hearing on the ch. 51 petition. Id. at ¶ 6. The court commissioner concluded that there was insufficient probable cause to proceed. Id. At that point, the ch. 51 proceeding was converted to a Wis. Stat. ch. 55 protective placement action and a 30-day temporary guardianship was issued. Id. Read more...


Western District of Wisconsin holds that the patent marking statute, 35 USC § 292 is constitutional

by Melinda S. Giftos, posted Tuesday, March 15, 2011

In the wake of two recent district court rulings that the patent marking statute, 35 U.S.C. § 292 is unconstitutional, the United States District Court for the Western District of Wisconsin has stepped into the fray to disagree. On March 15, 2011 in an Opinion and Order on defendants' motion to dismiss in Hy Cite Corporation v. Regal Ware, Inc.Case No. 10-cv-168, Hon. William Conley held that the patent marking statute does not violate the "take care" clause of Article II of the United States Constitution. The finding was based in large part on the history of qui tam actions and the fact that the government can in fact intervene if it so chooses. The decision can be read here. The court also applied the Rule 8 pleading standard in determining the sufficiency of plaintiff's allegations in the complaint. This is contrary to many other district courts, who have required plaintiffs to adhere to the heightened standard of Rule 9 in pleading false marking claims.


The Risk of Using Adwords Continues to be Unclear ...

by Christian D. Lavers, posted Tuesday, December 14, 2010

The pending 4th Circuit case Rosetta Stone Ltd. v. Google Inc. continues to create interest and argument about the use of Adwords. Amici briefs filed in the case are highlighting both the variety of trademark law matters raised in the case, as well as several splits in jurisdictions on these issues.  
Last year, the district court granted summary judgment to Google, finding that Google’s sale of trademarks owned by Rosetta Stone as Adwords was not trademark infringement because: (i) Google’s use of these trademarked terms was not likely to confuse internet users, and (ii) under the functionality doctrine, Adwords were an essential function of Google’s product and therefore were protected use. This application of the functionality doctrine was in opposition to the 9th Circuit case Playboy Enter., Inc. v. Netscape Communications Corp., where the 9th Circuit rejected the functionality doctrine when finding that the marks at issue performed a source-identifying function for Playboy, and therefore functional use by Netscape was irrelevant. The Rosetta Stone case also involves nominative fair use issues, similar to the 2nd Circuit case Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, (2d Cir. 2010), where the 2nd Circuit held that a defendant “may lawfully use a plaintiff's trademark where doing so is necessary to describe the plaintiff’s product and does not imply a false affiliation or endorsement by the plaintiff of the defendant.” Finally, the lower court opinion in Rosetta Stone also touched on contributory infringement liability – specifically whether Google’s sale of trademarks owned by one party as Adwords to another party is intentionally inducing trademark infringement.
Over 30 parties have filed amici briefs with the 4th Circuit in Rosetta Stone, and with so many issues that will potentially be addressed, the case may be a seminal case on the intersection of the internet and trademark law. Stay tuned...


The CPSC Launches Into Social Media

by Melinda Giftos, posted Monday, November 22, 2010

Today, the Consumer Product Safety Commission announced its launch into social media:
In keeping with its commitment to protect the lives of children and families, the U.S. Consumer Product Safety Commission is launching “CPSC 2.0,” a comprehensive social networking initiative that will make lifesaving and other safety information more accessible to consumers. Utilizing a variety of technologies and social media sites, CPSC will rapidly expand its reach to millions of consumers.
Through social media, CPSC can directly reach millions of the moms, dads and others who need our safety information the most,” said CPSC Chairman Inez Tenenbaum.
To read the full text of the announcement, click here.


New Incoterms® Effective January 1, 2011

by Andrew J. Schlidt, posted Wednesday, October 27, 2010

If your company buys or sells goods internationally, whether online or otherwise, you will want to familiarize yourself with the newly released Incoterms® 2010. The Incoterms® are an internationally recognized standard in commerce published by the International Chamber of Commerce and are used worldwide in both international and domestic contracts for the sale of goods (such as equipment, parts and computers). The Incoterms® were first published in 1936 and offer internationally accepted rules of interpretation for many common commercial terms.
The Incoterms® help contracting parties avoid expensive misunderstandings by clarifying the responsibilities and risks involved in the delivery of goods overseas. The rules are developed and maintained by experts identified by the International Chamber of Commerce with expertise in international business transactions. The Incoterms® are updated generally every 10 years. A copy of the Incoterms® 2010 can be purchased through the ICC website.
Now is a perfect time to review your standard purchase and sale agreements to determine whether updates are appropriate. Consider both your paper contracts as well as your online agreements (such as terms and conditions of sale, purchase orders, acknowledgments and the like). For companies that outsource manufacturing and fulfillment operations to foreign parties, now is the time to update those agreements. Likewise, if your company sells and markets products through foreign distribution channels, now is a good time to confirm that those distribution agreements are in conformance with changes to international commercial law.


Be Careful Letting Your Friends Use Your Software!

by Christian D. Lavers, posted Wednesday, October 27, 2010

On October 18, the Fifth Circuit ruled that a software licensee violated a license agreement by allowing its lawyers to access and use the software. The court found that this use was a violation of the license because the license expressly prohibited any use of the software other than that explicitly granted by the license—and no right to allow use "on behalf" of the licensee was granted. (See Compliance Source Inc. v. GreenPoint Mortgage Funding Inc.). The Fifth Circuit reversed the summary judgment motion that had been granted in favor of the licensee at the district level.
In the case, GreenPoint installed software that develops and prepares loan documents, and then allowed its attorneys to access and use the software to prepare loan packages for GreenPoint loans. The court found this to be a violation of the license, and stated that it would not "look past the actual language of a licensing agreement and absolve a licensee who grants third-party access merely because that access is on behalf of, or inures to the benefit of, the licensee." In distinguishing prior cases, the court held that the license itself must allow use "on behalf of" the licensee in order for third-party contractors or agents to have the right to access or use the software. While the concept that those rights not granted are reserved is certainly not new, this case highlights the importance of carefully drafting or negotiating license agreements to insure that all of those people you need to use the software actually have the right to do so.


Partnership Matters #3: Avoiding Messy Exits

by Michael J. Klinker, posted Thursday, October 14, 2010

Business partners often do not have equal shares of the business. There are often very good reasons for this. However, they should be aware that when the balance of power tilts one way or the other, there is potential for abuse.
In Wisconsin, on this issue, business corporations and LLCs are different. One often unexpected and important difference is the ability of a partner to unilaterally exit the business.
Law libraries have volumes dedicated to the topic of  the oppression of minority shareholders of business corporations. The oppression techniques that majority owners may employ have harsh sounding names such as "squeeze out" or "freeze out". The fundamental reason minority owners of a corporation may be "oppressed" by their business partner is that the Wisconsin corporate statutes do not allow them the unilateral authority to exit the business. If they want an exit by a means other than litigation, they must provide for it by contract. Many shareholders establish corporations without addressing this issue in a written shareholder agreement, and they may end up in messy litigation.
On the other hand, aside from a few limited exceptions, the Wisconsin limited liability company statutes provide members of a limited liability company the right to unilaterally withdraw and receive fair value for their membership interest within a reasonable time after the withdrawal. While the holder of a minority ownership percentage in an LLC may think that leaving the company in this manner is drastic, and getting out in this way has numerous uncertainties attached to it, it certainly does change the dynamic of the majority owner/minority owner relationship. The ability to oppress a minority owner is gone. However, if the ownership relationship is basically an at will relationship, it may be more volatile. Many LLC members establish LLCs without addressing this issue in an Operating Agreement and are subject to the risk of serious business disruption due to the unexpected exit of an owner.
When establishing your closely held business, it is wise to "Begin with the end in mind." Plan for exits, and put the plan in a written agreement.