OOS-2014-Summer-Final

The Florida Bar Out-of-State DivisionState-to-Stateflabaroutofstaters.org Summer 2014IN THIS ISSUE:Trademark rights and your bottom lineChapter 15 of the Bankruptcy Code: No need to panic; it’s available to youCarbon capture and the Information Quality ActComplexities of life insurance policy valuation

Out-of-State DivisionExecutive CouncilOfficersPresidentDonald A. Workman, Washington, D.C.President-ElectTimothy P. Chinaris, Montgomery, Ala.TreasurerChristopher C. Marquardt, Atlanta, Ga.SecretaryJohn C. Voorn, Palos Heights, Ill.Immediate Past PresidentDonald A. Workman, Washington, D.C.At-Large MembersScott Edward Atwood, Atlanta, Ga.W. Bard Brockman, Atlanta, Ga.Larry Kunin, Atlanta, Ga.D. Pearson Beardsley, Atlanta, Ga.E. Duffy Myrtetus, Richmond, Va.William A. Lee III, Waterville, Me.Board of Governors MembersBrian D. Burgoon, Atlanta, Ga.Ian M. Comisky, Philadelphia, Pa.Eric L. Meeks, Cincinnati, OhioRichard A. Tanner, Upper Montclair, N.J.Membership & Long-Range PlanningChairMindi Wells, Columbus, OhioCommunication Co-ChairsTiffany McKenzie, Atlanta, Ga.Mindi Wells, Columbus, OhioState-to-State Newsletter EditorDonald A. Workman, Washington, D.C.State-to-State NewsletterAssociate EditorMatthew L. Kahl, Sandy Springs, Ga.Board of Governors LiaisonEric L. Meeks, Cincinnati, OhioLegislative ChairE. Duffy Myrtetus, Richmond, Va.Young Lawyers RepresentativeLeslie Utiger, Dallas, Tex.05/14I N T H I S I S S U E :President’s message: Wrapping up the year as president ....................... 3Trademark rights and your bottom line...................................................... 4Florida Bar Out-of-State Division President’s Goal and Objectives for2013-2014............................................................................................... 4Chapter 15 of the Bankruptcy Code: No need to panic;it’s available to you.................................................................................. 7Carbon capture and the Information Quality Act...................................... 10Complexities of life insurance policy valuation........................................ 13Division News: 2014 Report of Nominating Committee........................... 18Your opportunity to be involved - Committees seek members ............... 19Out-of-state members of YLD board elected........................................... 19Burgoon, Comisky reelected to Board of Governors............................... 19Mark your calendar!................................................................................. 19Board of Governors’ update.................................................................... 20Editor’s Corner: Your Out-of-State Division wants tohelp grow your practice......................................................................... 22Contributing authors................................................................................ 23COVER:THE NEW JERSEY STATE HOUSEPhoto credit: WikipediaThe New Jersey State House is located in Trenton and is the capitol building for the U.S. stateof New Jersey. Built in 1790, it is the second-oldest state house in continuous legislative usein the United States; only the Maryland State Capitol in Annapolis is older. The building is currentlyhome to both chambers of the New Jersey Legislature (the New Jersey Senate and theNew Jersey General Assembly), as well as offices for the governor of New Jersey, lieutenantgovernor of New Jersey and several state government departments.flabaroutofstaters.org 2 State-to-State — Summer 2014

Colleagues:Well, this willbe my last columnas president of theOut-of-State Division.We’ve hadsome great accomplishmentsI’d liketo share. It’s beena privilege to serveD. WORKMANas president for twoyears and to work with a great and talentedgroup of attorneys. Your officerswork diligently to serve our members.We conducted another successfulreception, this time in Nashville, Tenn.,on April 3. We co-hosted with the YoungLawyers Division in conjunction withtheir out-of-state meeting. These gatheringsare open to Florida Bar members,and we invite you to join the OOSDivision to participate in the benefitsof membership.We continue to make progress on TheFlorida Bar Out-of-State President’sGoal and Objectives for 2013-2014.You can find them on page 4. I describethese as a “checklist” for what we needto accomplish, and they also will serveas a grading system on my performanceand what we accomplished duringmy presidency.Here’s an update on where we areso far on some of our objectives forthis year:Annual meeting: We are eagerlyplanning events in conjunction withThe Florida Bar Annual Convention,which is scheduled to take place atthe Gaylord on June 25-28, 2014, inOrlando. We will conduct the annualmeeting of the OOS Division, duringwhich the officers will be sworn intooffice by the president of The FloridaBar.Continuing legal education:The division continues to focus onincreased webcast continuing legaleducation seminars. In December,OOSD President-Elect Tim Chinarispresented Ethics in an Age of Technologyfor an hour of ethics credit. InFebruary, Christopher Marquardt,treasurer of the Out-of-State Division,presented Non-Traditional Labor:President’s messageWrapping up the year as presidentRecent NLRB Enforcement Activityin Non-Union Workplaces by webcast.In March, we presented a CLE courseco-hosted with the Young LawyersDivision. It was entitled The FourthAmendment: What Can Be Found onCell Phones With Ethics Update. IanComisky, one of our executive councilmembers and governor, chaired thepanel, which featured William Ridgway,assistant U.S. attorney for theNorthern District of Illinois, and GinaSpada, member of the InternationalAssociation of Privacy Professionals.In April, we featured Dena Kesslerfrom BakerHostetler, who presentedBankruptcy: Navigating the AutomaticStay, Discharge, Preferenceand More. Next up was a web CLEthat I presented, entitled Attorney’sFees in Bankruptcy: Fee Applications,Disclosure Requirements and More.Both the April and May CLEs wereco-hosted with the YLD.As you can see, we’re striving tooffer more CLE opportunities forour membership. The webinars areavailable to members with accessto the OOS Division website (www.flabaroutofstaters.org). We’re enthusiasticabout expanding our offeringsand would value your input.Long-range planning and bylawsreview: We organized a specialcommittee to ensure that our bylawsreflect the current needs of our members.We also continue to evaluate thedivision’s long-range plan so that weenhance value to out-of-state lawyersand encourage their participation asmembers.Diversity: We actively encouragedwomen, minorities and diverse groupsto participate and join. Such an effortis a top priority with Florida BarPresident Eugene Pettis, as it is for me.We also focus on increasing geographicdiversity. The Long-Range PlanningCommittee will continue to addressthis topic, and we would value yourinput and participation.OOSD publication: The Stateto-Statecontinues to provide greatoutreach and substantive articles. Wesend each edition electronically to allout-of-state Bar members, a circulationof well over 13,000 lawyers. Pleasenote the advertisers in this edition.We encourage you to support thesecompanies, even if you just reach outand thank them. We welcome you tosubmit articles, and we will strive topublish them all. We also include adescription of you and your practice.There’s no secret—we want to help youget out the word about you. So, send usyour articles!Webpage: The OOSD InformationCommittee has been working to updateand improve the division’s webpage.You can access the State-to-State,CLE, ethics programs and a variety ofinformation. We continue to look forimprovements. Please let Mindi Wellsor Tiffany McKenzie know any ideasor suggestions. We’d love to have yourhelp, so please contact us.Speaking of your input, you’ll see thecontact information of the officers andexecutive council members in this edition.We are here to serve you. We wantyour thoughts on how we can seize opportunitiesto better serve out-of-statelawyers. We want to help your practiceand help you do your job.We will be guided in all we do byour promise to you in accord with theOOSD bylaws “to assist out-of-statelawyers: in administrative, educationaland practice development issues; withpro bono activities; in relocating toFlorida; and in establishing a networkof out-of-state members.” That’s a bigpromise; we could use your help. Pleasejoin us in this very worthwhile pursuitto make this a great year of opportunitiesand to finish strong!Thank you for the opportunity toserve. Many thanks to the OOSD officersand council members who havebeen so supportive. I also want to thankSusan Trainor and Matt Kahl for theireditorial assistance on the State-to-State. And thanks to our administrator,Willie Mae Shepherd, for all she does tokeep the division functioning.Best wishes to Tim Chinaris, ourincoming president.flabaroutofstaters.org 3 State-to-State — Summer 2014

Trademark rights and your bottom lineCopyrights, trademarksand patentsare the three areascovered by intellectualproperty (IP)laws. Distinguishingbetween these areascan be tricky. I onceoverheard someonesay, “That’s a catchyK. MAJOR-MORRIS phrase, and youshould patent that!”While phrases cannot be patented, mostpeople do have an understanding thatthe law protects creative works.The focus of this article is the benefitsof trademark ownership. However, forclarity, you should understand the basicprotections in IP matters.Intellectual property basicsTrademarks are words or symbolsthat identify the source of productsand services used in commerce. Nike’s“Just Do It” slogan, Apple’s symbol (thebitten apple) and Louboutin’s red bottomshoes are great examples of each.Federal trademark ownership benefitscited on the United States Patent &Trademark Office (USPTO) site (www.uspto.gov) include:• Public notice of your claim of ownershipof the mark;• A legal presumption of your ownershipof the mark and your exclusiveby Kimra Major-Morrisright to use the mark nationwideon or in connection with the goods/services listed in the registration;• The ability to bring an action concerningthe mark in federal court;• The use of the U.S. registration as abasis to obtain registration in foreigncountries;• The ability to record the U.S. registrationwith the U.S. Customs andBorder Protection (CBP) Service toprevent importation of infringingforeign goods;• The right to use the federal registrationsymbol ®; and• Listing in the United States Patentand Trademark Office’s onlinedatabases.Copyrights protect original works ofauthorship, including music, art, literaryworks, dramatic works and otherintellectual works. Owners of copyrightshave six exclusive rights to reproducethe work, create derivative works, distributethe work, perform the work(whether visual or a digital audio performance)and display the work. Onlythe copyright owner can authorize theseexclusive rights for others to execute.Read more on the Copyright Office’swebsite at www.copyright.gov.Patents grant special rights to theinventor of: 1) a new process; 2) a machine;3) an article of manufacture; 4) acomposition of matter; and to inventorswho create 5) improvements to any ofthe aforementioned. Patent rights allowpatent owners to control the use, sale,offering and importing of their inventions.Patents are applied for throughthe USPTO’s website.Trademarks add value to yourbusinessAs a business owner, you want todo everything possible to strengthenthe reputation of your business by offeringproducts and services. Throughtrademark ownership, allowing the useof your logo in association with otherreputable brands adds consumer confidence,drives new business and adds toyour bottom line. Although developingan intellectual property portfolio opensadditional revenue streams for businessowners, trademark ownership andlicensing is not included in the initialbusiness plans of the majority of smallbusiness owners I have served. Unfortunately,the value of owning intellectualproperty is widely unknown to smallbusiness owners.Trademark ownership and the authorityto license brands is big business.Think of the last sporting eventyou attended, where you saw logos foreach team, the sponsors, the contractorsFlorida Bar Out-of-State DivisionPresident’s Goal and Objectives for 2013-2014GOALTo further enhance OOS Division services to members through continued improvement of CLE, publications, student/younglawyer growth, diversity and revenue in order to stimulate growth in membershipOBJECTIVES• Stimulate perception of OOSD within Bar and BOG through outreach with current and future members• Ensure OOSD meets or exceeds desire of members regarding the direction and services of the division• Increase CLE offerings• Sponsor CLE at October Board of Governors meeting• Submit proposal for Presidential Showcase CLE at annual meeting• Continue enhancements to webpage for members• Continue to develop and enhance use of social media• Continue active participation of president-elect• Increase advertising in and revenue from State-to-State• Conduct at least three receptions nationally• Conduct at least monthly meetings of Executive Board and quarterly meetings of Executive Council in addition to annual meetingflabaroutofstaters.org 4 State-to-State — Summer 2014

Trademark rights, continuedand other vendors. While the lucrativeprofit margins derived from licensingroyalties are not “breaking news” forlarger corporations, smaller businessowners should know that they haveunique opportunities, through technology,to do bigger things with affordableinvestments.Take a lesson from the musicindustryMusic industry artists are, themselves,a brand. Depending on theirlevel of notoriety, some have reachedcelebrity status worthy of trademarkprotection under the Lanham Act. Newartists once relied on managers andlucky breaks to expose their talentsto the world. Now, thanks to YouTube,Reverb Nation, CD Baby and countlessother outlets for artists, the price tag fora worldwide stage is extremely cheap.The music industry took a hit withthe devastating profit losses resultingfrom online piracy. Executives quicklyrealized that with minimal financialrisks, record companies could negotiatea piece of a larger financial pie. About10 years ago, record companies beganoffering “360 deals,” which entitle labelsto a percentage (5%-20%) of the artist’sancillary income derived from tours,reality television shows, film, commercialsand other independent projects(outside of record sales). It’s the samebusiness model used by profitable trademarkowners. Everywhere the artist/merchandise/business logo goes mustbe an opportunity to generate revenue.Simply put, without a trademark, businessowners lose money. Record labelscouldn’t depend on record sales whenthe industry changed. Business ownerscan’t depend on walk-ins without theassistance of thoughtful product/brandplacement. Labels know that their artistsadd value to various entertainmentevents. Business owners must ensureadded value to other brands. The firststep in earning brand recognition is torepresent the products and servicesthrough the use of a strong trademark.Selecting a trademarkSelecting a word mark (trademark)should be a thoughtful process that includesforward thinking. For example, ifyou own a deli that is currently locatedon 4 th Street and your lease will expirenext year, you should not have a pending“4 th Street Deli” trademark. Aside frompondering the relevance of the markover time, there are many other considerations,including whether the mark istoo generic, merely descriptive or just anunwise choice. A good trademark attorneyadvises clients against registeringweak or problematic trademarks.Perhaps even more thought should gointo selecting a design or a logo for yourtrademark. Symbols can be extremelypowerful in connecting with consumers.Businesses have the option of filing thename and the logo in a single federaltrademark application, but if they’refiled together, they must always appeartogether. The same applies for taglines(e.g., “Like a good neighbor”). If a taglineis included in the application, it will bean element of the trademark registrationwhen the application is finalized.Although separate filing fees will becharged, filing one application for theword mark and another applicationfor the logo separately allows for morecreative marketing.Applying for a federal trademarkIndividuals andentities can applyfor trademark ownership.A federaltrademark is appliedfor through theUSPTO’s website anddoes not offer internationalprotection.(Separate applicationsare required tocover various internationalterritories.)The standard filingfee is $325 per classificationof goodsand services for domesticapplications.If you’re applying fora trademark for yourbusiness’s charitableservices and its keychain products, forexample, the total filingfees will be $650.The charitable serviceclassification greatlydiffers from the keychain classification,and separate classificationfees apply.Detailed descriptions of each class canbe found in the “ID Manual” on theUSPTO’s site.The application process typicallytakes between 6 and 12 months to finalize,but the exact time depends ona number of factors. The trademarkexamining attorney’s findings, the applicant’stimeliness in responding tothe USPTO’s requests, oppositions filedagainst the trademark application andthe accuracy of the information includedin the application are some of thepossible factors. Federally registeredmarks are valid for 10 years and canbe renewed.Trademark ownership requires monitoringto ensure the proper use of themark (in accordance with the classificationsregistered for) and to enforcetrademark rights, which can be lost forfailure to “police” the mark.State trademarksLocal business owners may wish toapply for state trademarks, if statetrademark registrations are offered inthat state. State registrations are lessAtlanta │ GeorgiaBusiness Disputes & LitigationPersonal InjuryBRIAN D. BURGOONAdmitted in Georgia & FloridaAAA ArbitratorMember, Florida Bar Board of GovernorsChair, Florida Bar Disciplinary Review Committeewww.burgoonlaw.com659 Auburn Ave │ Suite 147 │ Atlanta │ GA │ 30312404.260.5147 │ burgoon@burgoonlaw.comflabaroutofstaters.org 5 State-to-State — Summer 2014

Trademark rights, continuedexpensive than federal applications.Florida offers state trademarks, andthe filing fee for a Florida trademark is$87.50 per class. It is important to notethat state trademarks do not bar othersfrom acquiring federal trademarksfor the same mark. They give superiorrights only in the state where the markis registered.Benefits of consulting with atrademark attorneyBefore applying for a federal or a statetrademark, it is advisable to consultwith a trademark attorney. While theassistance of an attorney is not requiredto obtain a trademark, an attorney canprovide valuable advice and can preventbusiness owners from unintentionallyinfringing on others’ rights, wastingmoney by applying for marks alreadybeing used in commerce and applyingfor marks that will be difficult toenforce.The price for skipping animportant stepWhen it comes to searching the availabilityof the desired name, some individualsconduct the free search on theUSPTO’s website and believe that willsuffice. The USPTO contains a list offederally registered trademarks. It doesnot indicate whether an individual oran entity has acquired common law(superior) rights by using the mark incommerce.Nevertheless, some take a leap offaith and begin doing business withouta clearance search. Diligent trademarkowners subscribe to trademark monitoringservices to receive alerts whenevertheir mark is being used in commerce.Once they are alerted to unauthorizeduse, infringers (including unintentionalinfringers) are subject to financial consequencesthat flow from federal andstate claims (if applicable) for unfaircompetition, injuries to business reputationand sales, etc.Trademark application errors are notimmediately apparent to the trademarkoffice’s examining attorneys (or the applicant),and the delayed discovery ofproblems increases financial risks tothe affected parties. Case in point: Anindividual registered a Florida businessnot knowing there was a confusinglysimilar federally registered trademarkon file. Several months later, the individualreceived a cease and desist noticefrom the federal trademark ownerand was forced to amend the businessname and cease all other uses within 30days to avoid litigation costs. The businessowner had to change all signage(on-site signage and signs on companycars), transfer the domain name to thetrademark owner, order new companyuniforms, revise business cards, revisebusiness forms, update bank accountsand abandon the company slogan. Althoughthe complaining business ownerbelieved he lost business because ofthe confusion, he did not file suit. Despitethat, failing to conduct a clearancesearch cost the accidental infringer over$10,000 to comply with the cease anddesist notice.Hopefully you’re wondering howto avoid this kind of nightmare. TheFlorida Division of Corporations system(www.sunbiz.org) will not reject anew business filing when your businessname infringes on another party’s. Infact, a disclaimer appears on the site notifyingyou that it is the registrant’s responsibilityto verify trademark rights.Although Florida’s system does detectand reject filings of identical federallyregistered trademarks listed on theUSPTO site, the ease with which unintentionalinfringers file business namesbearing protected trademarks is concerning.A name that is “substantiallysimilar” dilutes the trademark owner’sbrand and causes confusion regardingthe source of the products and servicesprotected by trademark law.Business owners have flexible optionsfor establishing residual income flowingfrom royalties on logo licensing, productsales and marketing fees. In this do-ityourselfage, the temptation to absorbcomplicated data to save money is great.Sometimes the risk is too great. Intellectualproperty rights and licensingopportunities are well worth the investmentfor profits and peace of mind.Florida Bar information now on your smartphone!The Florida BarMember BenefitsFloridaBarCLEFor the Bar, By the Bar.www.floridabar.org/memberbenefitswww.floridabar.org/cleflabaroutofstaters.org 6 State-to-State — Summer 2014

Chapter 15 of the Bankruptcy Code:No need to panic; it’s available to youby Alvin F. Benton, Jr.With the growingglobal business marketplace,businessesare looking for usefulmechanisms tomaintain debt andmanage their solvency.Given thevarious industriesA. BENTON, JR. of Florida—includinghospitality andtourism, agriculture, manufacturingand health sciences—there are plentyof opportunities and ventures availablefor investment or ownership byforeign individuals or corporations.But what happens when that foreigncorporation runs into financial difficultiesin its home country? And whathappens when that foreign corporationis involved in its home countryinsolvency proceedings? And whathappens to the corporation’s assetslocated in Florida? Chapter 15 ofthe Bankruptcy Code was created toresolve these issues; however, manypractitioners are unaware of the benefitsof Chapter 15.Chapter 15 was added to the BankruptcyCode by the Bankruptcy AbusePrevention and Consumer ProtectionAct of 2005 and replaced Section 304of the Bankruptcy Code. 1 The purposeof Chapter 15, and the Model Lawon which it is based, is to provide effectivemechanisms for dealing withinsolvency cases involving debtors,assets, claimants and other partiesof interest involving more than onecountry. Although a Chapter 15 filingrelates to a pending foreign insolvencyproceeding, common U.S.bankruptcy concepts such as theautomatic stay, the sale of propertyunder § 363 of the Bankruptcy Codeand the avoidance of post-petitiontransfers are consistent throughoutthe Chapter 15 process. 2In most instances, a Chapter 15case is ancillary to a primary proceedingbrought in another country, usuallythe debtor’s home country. As analternative, the debtor or the creditormay commence a full Chapter 7 orChapter 11 case in the United Statesif the assets in the United Statesare sufficiently complex to merita full-blown domestic bankruptcycase. 3 Under Chapter 15, a court mayauthorize a trustee or other entity(including an examiner) to act in aforeign country on behalf of a UnitedStates bankruptcy estate. 4As indicated in 11 U.S.C. §§ 1525-1527, cooperation among the courts(U.S. and foreign) appears to be anunstated goal under Chapter 15. Section1525 requires that the courtcooperate to the maximum extentpossible with a foreign court or foreignrepresentative. 5 Section 1526 requiresthe same cooperation betweenthe trustee and a foreign court orforeign representative. 6 Section 1527provides various forms of cooperation,including appointment of a person ora body to act at the direction of thecourt, communication of informationand coordination of the administrationand supervision of the debtor’sassets. 7Section 1502 provides definitionsfor the following terms you’ll seethroughout Chapter 15: debtor, establishment,foreign main proceeding,foreign nonmain proceeding andrecognition. 8 Clearly stated, a debtoris defined as the subject of a foreignproceeding. 9 Establishment is definedas any place of operations where thedebtor carries out a nontransitoryeconomic activity. Foreign main proceedingis defined as a foreign proceedingpending in the country wherethe debtor has its main interests;and a foreign nonmain proceeding isconversely defined as a foreign proceeding,other than a foreign mainproceeding, pending in a countrywhere the debtor has an establishment.Simple enough? Not really, asthe terms foreign main proceeding,foreign nonmain proceeding, establishmentand nontransitory seem tocause the most conflict among bankruptcypractitioners. However, someof these terms will be addressed furtherin this article as we discuss someof the Chapter 15 decisions enteredin 2013.In terms of recognition, many practitionershave viewed Chapter 15relief as automatic, similar to the formerBankruptcy Code Section 304. 10Chapter 15 grants courts substantialflexibility and discretion in furtheringthese objectives; however, courtshave little latitude in determiningwhether a foreign proceeding meritsrecognition as either a main or anonmain proceeding. The approachin determining a main or a nonmainproceeding involves a straightforwardapproach and review of the definitionsstated in Bankruptcy Code §§1502, 101(23) and 101(24).Steps in Chapter 15Section 1509 provides that a foreignrepresentative may commence acase by filing a petition with the courtfor recognition of a foreign proceedingunder 1517. 11 U.S.C. § 1517 providesthat the court is authorized to issuean order recognizing the foreignproceeding as either a foreign mainproceeding (a proceeding pending ina country where the debtor’s centerof main interests are located) or aforeign non-main proceeding (a proceedingpending in a country wherethe debtor has an establishment, butnot its center of main interests). 11In ruling on a petition for recognitionunder Section 1517, the courtmust address the following: 1) Wouldthe proposed recognition be “manifestlycontrary to the public policy ofthe United States” as contemplatedunder Section 1506; 2) Is the subjectforeign action a foreign proceeding asdefined in 11 U.S.C. § 101(23); 3) Isthe foreign representative who filedthe petition for recognition a personor a body; 4) Does the petition meetthe formal requirements of Section1515; 5) Is the foreign proceedingpending in the country where thedebtor has the center of its maininterests and thus a foreign mainproceeding; and 6) Does the debtorhave an establishment in the foreignflabaroutofstaters.org 7 State-to-State — Summer 2014

Chapter 15, continuedcountry where the proceeding is pending, thus makingthe foreign proceeding a foreign nonmain proceeding? 12Section 1517 of the Bankruptcy Code summarizes theChapter 15 recognition process, but practically, how doesChapter 15 work?In his paper titled “The New Chapter 15 of the BankruptcyCode: A Step Toward Erosion of National Sovereignty,”John J. Chung provides a good outline for a fairlytypical case under Chapter 15, summarized as follows:A Canadian company with its headquarters in Torontocommences bankruptcy proceedings in Canada. It hasone factory in Canada and one in the United States. Eachof the factories has unpaid employees and suppliers. TheAmerican factory secures a bank loan from an Americanlender, and the Canadian factory secures a loan from aCanadian bank. A foreign insolvency proceeding is filedin Canada. Considering the factors stated above, the Canadianrepresentative applies for recognition of a foreignmain proceeding under Chapter 15. The American courtgrants the application. All proceedings and creditor actionsin the United States are stayed, and the Canadianrepresentative takes control of all U.S. assets and operatesthe American factory. The American creditors thenpursue their claims in the Canadian proceeding. TheCanadian judge has jurisdiction over all the assets andcreditors and resolves all claims together. 13From the example provided, it is easier to understandthat the practical concept of cooperation among thecourts is necessary in the Chapter 15 bankruptcy process.Creditor participationChapter 15 gives foreign creditors the right to participatein U.S. bankruptcy cases, and it prohibits discriminationagainst foreign creditors (except certain foreigngovernment and tax claims, which may be governed bytreaty). 14 It also requires notice to foreign creditors concerninga U.S. bankruptcy case, including notice of theright to file claims similar to the proof of claim processin a U.S. bankruptcy proceeding. 15Florida decisionsAn important Florida decision affecting Chapter 15jurisprudence is SNP Boat Service S.A. v. Hotel Le St.James, 2012 WL 13555550 (S.D. Fla. Apr. 18, 2012). InSNP, the court initially upheld the bankruptcy court’sruling ordering discovery of a foreign debtor’s principalsnotwithstanding a French blocking statute thatprevented such discovery. 16 The district court laterdetermined that the bankruptcy court acted withinits discretion when it disregarded the French blockingstatute and ordered representatives of the debtor to bedeposed, but also determined that the bankruptcy courtabused its discretion when it ordered discovery to determinewhether the appellee/third-party’s interest weresufficiently protected in the specific French sauvegardeproceeding. 17 In SNP, the bankruptcy court recognizedthe sauvegarde proceeding as a foreign main proceeding,and the recognition order stayed any further collectionproceedings in the United States against SNP and itsassets. 18 The SNP decision reaffirmed the belief that oncea United States court determines a foreign proceedingis recognition worthy, it no longer has the discretion toexamine whether those safeguards are adequate, andthat cooperation is the key in successfully participatingin a Chapter 15 case.The Southern District of Florida Bankruptcy Courtalso dealt with the jurisdictional reach of Chapter 15 inthe In re British American Insurance Company Ltd. decision.19 In the British American decision, Judge Kimballprovided an in-depth, historical look at Chapter 15 andthe purposes and goals of Chapter 15. The court alsodetermined that the provisions of Chapter 15 that empowerthe court to entrust a foreign representative withthe ability to administer and/or realize a foreign debtor’sassets “within the territorial jurisdiction of the UnitedStates” do not limit the court’s subject matter jurisdictionpursuant to 28 U.S.C. § 1334. 20The British American court held that courts presidingover Chapter 15 cases may also exercise jurisdiction overdisputes “related to” those Chapter 15 cases, pursuant tothe jurisdictional authority granted in 28 U.S.C. § 1334. 21The court determined that its interpretation is consistentwith Chapter 15’s overall goals and focus on comity. 22Decisions in 2013 affecting Chapter 15 filingsIn addition to the SNP and British American decisions,there were a few decisions in 2013 that highlight theevolution of Chapter 15 and ancillary and cross-borderinsolvency practice. Some of these evolutions addressed are:1) whether a foreign debtor must have a place of businessor assets in the United States to be eligible for Chapter15 23 ; and 2) whether insolvency is actually necessary in aCommit 10 hours this year to the OOSD!A 10-hour yearly commitment to the OOSD (less thanone hour per month) translates to doing just one of thefollowing activities:1) Support the division by attending executive councilmeetings;2) Join and participate in a committee for the next year;3) Write one substantive article for State-to-State;4) Volunteer to write materials and present one hour ofCLE a year;5) Volunteer to be a mentor for law students; or6) Help update, improve and maintain the division’swebsite.flabaroutofstaters.org 8 State-to-State — Summer 2014

Chapter 15, continuedChapter 15 case. 24 Year by year, as more brave practitionersventure into the world of Chapter 15, courts are providingmore clarity as to what are the essential and necessarythings needed in a Chapter 15 case.ConclusionFamiliarity with Chapter 15 opens up broad opportunitiesfor Florida and non-Florida attorneys to assisttheir clients—both domestically and internationally—innavigating the unchartered waters of foreign insolvency.Although underutilized, there were at least 65 Chapter 15cases filed in U.S. bankruptcy courts as of the beginningof the third quarter of 2013. 25 Given the diverse makeupof Florida, it should be expected that this diversity spillsover into the international business world. The decisionsin the above-mentioned Florida courts prove that Floridajudges are extremely competent in handling even themost complex foreign insolvency matters. Thus, an attorney’sunderstanding and willingness to handle Chapter15 cases will benefit those international and foreigncompanies and those brave practitioners who opt to gowhere few others have gone.Endnotes1 http://www.uscourts.gov/FederalCourts/Bankruptcy/BankruptcyBasics/Chapter15.aspx2 11 U.S.C. § 1520.3 11 U.S.C § 1520(c).4 11 U.S.C. § 1505.5 11 U.S.C. § 1525.6 11 U.S.C. § 1526.7 11 U.S.C. § 1527.8 11. U.S.C. § 1502.9 Id.10 As several courts have noted, “many of the principles underlying § 304remain in effect under chapter 15.” In re Atlas Shipping A/S, 404 B.R. at 739:see also In re Artimm, S.r.L., 335 B.R. 149, 159-60 (Bankr.C.D.Cal.2005)(“[T]he chapter 15 regime looks somewhat different from that applicable tothis case under § 304. However, there is one provision that is strikingly similar.As under § 304, § 1521(b) authorizes the court, upon the request of the foreignrepresentative, to entrust the distribution *785 of all or part of the debtor’s U.S.assets to the foreign representative.”); Leif M. Clark & Karen Goldstein, SacredCows: How to Care for Secured Creditors’ Rights in Cross-Border Bankruptcies,46 Tex. Int’l L.J. 513, 524 (2011) (“Not surprisingly, the case law under former §304 is still relevant to the interpretation of Chapter 15, especially as it concerns theremedies available to a foreign representative once recognition has been granted”).11 See 11 U.S.C. § 1517.12 In re British American Insurance Company Ltd., 488 B.R. 205, 214 (Bankr.S.D. Fla. 2013).13 See John J. Chung, The New Chapter 15 of the Bankruptcy Code: A StepToward Erosion of National Sovereignty, 27 Nw. J. Int’l. L. Bus. 89, 98 (2007).14 11 U.S.C. § 1513.15 Id.16 SNP Boat Service S.A. v. Hotel Le St. James, 2012 WL 13555550 (S.D. Fla.Apr. 18, 2012).17 Id. Sauvegarde proceedings are the French pre-insolvency proceedingsmost analogous to U.S. Chapter 11. “The goals of a sauvegarde proceeding areto “facilitate the reorganization of the debtor in order to pursue its commercialactivity, to maintain its employments and to repay its debts.” See SNP Boat ServiceSA v. Hotel Le St. James, 483 B.R. 776, 778 (2012).18 Id.19 In re British American Insurance Company Ltd., 488 B.R. 205 (Bankr. S.D.Fla. 2013).20 British American, at 226-27.21 Id.22 British American, at 239.23 In re Barnet, 737 F.2d 239 (2d Cir. 2013).24 In re Millard, 501 B.R. 644 (Bankr. S.D.N.Y. 2013).25 http://news.abi.org/sites/default/files/statistics/Chapter%2015%20Filings.pdfNeed to meet your CLE requirements—for free?Many of you may not know it, but The Florida Bar offers a large number of CLE programsat no cost to its members. This is especially useful to out-of-state members in stateswhere there is not a mandatory CLE requirement. To access these programs, go to TheFlorida Bar’s website (www.flabar.org) and click on the “CLE” tab in the upper righthandcorner. Scroll down to “Online Courses” and click on “Catalog of Courses.”That brings you to a list of offered programs. If you click on either “Discounted orReduced Price Programs” or “Law Practice Management,” you will see more than30 hours of free online course offerings. That, combined with the free ethics tape theOOSD provides, should pretty much let you fulfill your CLE requirements.flabaroutofstaters.org 9 State-to-State — Summer 2014

Carbon capture and theInformation Quality Actby H. Brendan BurkeOn Jan. 8, 2014, theU.S. EnvironmentalProtection Agency(EPA) issued a proposednew sourceperformance standard(NSPS) underthe Clean Air Act 1for carbon dioxideH. BURKE (CO 2) emissions fromnew or modified electricutility plants that will effectivelyrequire implementation of a processknown as carbon capture and sequestration(CCS). 2 EPA offers the followingexplanation of this technology:CCS is a three-step process thatincludes:1. Capture of CO 2from power plantsor industrial processes;2. Transport of the captured andcompressed CO 2(usually in pipelines);and3. Underground injection and geologicsequestration (also referredto as storage) of the CO 2into deepunderground rock formations. Theseformations are often a mile or morebeneath the surface and consistof porous rock that holds the CO 2.Overlying these formations are impermeable,non-porous layers of rockthat trap the CO 2and prevent itfrom migrating upward. 3The new rule would limit CO 2, a previouslyunregulated greenhouse gasemission, from such generation facilitiesto a rate of 1,100 pounds per megawatt-hour(MWh). 4 Energy producers,especially those employing coal-firedplants, are strongly opposed to theselimits. 5On Feb. 3, 2014, the Center for RegulatoryEffectiveness (CRE) sent a letterto the EPA administrator alleging thatthe proposed rule violates the InformationQuality Act 6 (IQA) in that it isbased on scientific studies that were notpeer-reviewed as required by the Officeof Management and Budget (OMB)’sregulations implementing the IQA. 7Since its passage in 2000, the IQAhas been criticized as a tool for corporateinterests to suppress unfavorablegovernment reports and actions. 8 Inthis case, the issue turns on whetherthe studies cited in the proposed NSPSrule qualify as a “Highly InfluentialScientific Assessment” (HISA) withinthe meaning of the OMB’s regulations,thereby triggering enhanced peerreviewrequirements. 9This article will introduce the readerto the IQA and explain competing viewsas to the extent to which the IQA islegally binding. The article will furtheranalyze whether the science the EPAused to develop the CCS rule is, in fact,a HISA, and to what extent the IQAmay or may not apply.The Information Quality ActThe IQA was passed in late 2000 andwas enacted by a lame-duck ClintonAdministration. 10 In its entirety, theAct reads as follows:(a) IN GENERAL.—The Director of theOffice of Management and Budgetshall, by not later than September30, 2001, and with public and Federalagency involvement, issue guidelinesunder sections 3504(d)(1) and3516 of title 44, United States Code,that provide policy and proceduralguidance to Federal agencies forensuring and maximizing the quality,objectivity, utility, and integrityof information (including statisticalinformation) disseminated by Federalagencies in fulfillment of thepurposes and provisions of chapter35 of title 44, United States Code,commonly referred to as the PaperworkReduction Act.(b) CONTENT OF GUIDELINES.—The guidelines under subsection (a)shall—(1) apply to the sharing by Federalagencies of, and access to, informationdisseminated by Federal agencies;and(2) require that each Federal agency towhich the guidelines apply—(A) issue guidelines ensuring andmaximizing the quality, objectivity,utility, and integrity of information(including statistical information)disseminated by the agency, by notlater than 1 year after the date ofissuance of the guidelines undersubsection (a);(B) establish administrative mechanismsallowing affected persons toseek and obtain correction of informationmaintained and disseminatedby the agency that does notcomply with the guidelines issuedunder subsection (a); and(C) report periodically to the Director—(i) the number and nature of complaintsreceived by the agency regardingthe accuracy of information disseminatedby the agency; and(ii) how such complaints were handledby the agency. 11The IQA was an amendment to thePaperwork Reduction Act of 1980. 12 TheOMB promulgated its first iteration ofimplementing regulations on Feb. 22,2002. 13 The IQA and the OMB’s implementingregulations apply to “information”that is “disseminated” by virtuallyall federal agencies. 14 The regulationdefines those terms as follows:“Information” means “any communicationor representationof knowledge such as facts ordata ... .” This definition of information... does “not includeopinions, where the agency’spresentation makes it clear thatwhat is being offered is someone’sopinion rather than fact or theagency’s views.”“Dissemination” is defined tomean “agency initiated or sponsoreddistribution of informationto the public.” 15In accordance with the statutory languagequoted above, 16 the regulationsseek to ensure information “quality”by imposing standards for “objectivity,utility, and integrity.” 17 Those terms arebroadly defined, 18 but remain open to considerableinterpretation and debate asto their value as normative standards. 19Judicial enforceability of the IQAAlso unclear is the extent to whichflabaroutofstaters.org 10 State-to-State — Summer 2014

Carbon capture, continuedthe IQA is judicially enforceable. In2006, the Fourth Circuit Court of Appealsrejected the argument that theIQA established a right to “informationalcorrectness” 20 : “By its terms, thisstatute creates no legal rights in anythird parties. Instead, it orders the[OMB] to draft guidelines concerninginformation quality and specifies whatthose guidelines should contain ... .[T]he statute ... does not create a legalright to access to information or to correctness... .”In 2010, however, the Court of Appealsfor the District of Columbiareached an arguably different result.In Prime Time International Companyv. Vilsack, 21 a cigar manufacturer challengedthe Department of Agriculture’smethodology for calculating domestictobacco farm subsidies. 22 The lowercourt had dismissed the plaintiff’s IQAsuit for failure to state a claim, citingthe Fourth Circuit opinion discussedabove. 23 The circuit court took a differenttact. 24 The court still dismissedthe IQA portion of the suit, but didso not for failure to state a claim butrather because the subsidy calculationsqualified as an “adjudicative process”exempt from the OMB’s definition ofa “dissemination.” 25 One month later,after the CRE had touted the PrimeTime decision as a victory disguisedas defeat, the Department of Agriculturepetitioned the circuit court for arehearing and that “the panel amendits opinion to clarify that the Court didnot decide whether the [IQA] creates judiciallyenforceable rights.” 26 The courtdenied the rehearing request outright. 27But in American Petroleum Institutev. EPA, 28 a 2012 D.C. Circuit panelreached a different result. 29 In AmericanPetroleum, the industry group (API)challenged the EPA’s 2010 revision ofthe CAA national ambient air qualitystandard for nitrogen dioxide. 30 Amongother claims, API asserted that the EPAhad failed to adhere to the peer reviewguidelines in its own 2002 informationquality manual, adopted pursuantto the IQA. 31 The court emphasizedthat the guidelines were precisely justthat—guidelines. 32 It found dispositivethe fact that the guidelines used theword “should” rather than “shall” inplaces like this statement: “major scientificallyand technically based workproducts ... related to Agency decisionsshould be peer-reviewed.” 33 DismissingAPI’s IQA claim, the court furthernoted, “No doubt the EPA believes peerreview is important and it intended toimpress that value upon its staff, butthe agency did not bind itself to a judiciallyenforceable norm.” 34Interestingly, the American Petroleumopinion does not cite or otherwisemention Prime Time, 35 leavingto speculation whether Prime Timeindicates any judicial enforceabilityfor the IQA and if so, how to distinguishthe two cases. In other words,what facts did Prime Time have thatAmerican Petroleum did not that mayhave led to a different outcome on thequestion of enforceability? The most apparentdistinction is that the plaintiffin Prime Time challenged the government’smethodology itself while APIonly challenged the extent to which theresults were reviewed.If that is the distinguishing pointbetween the two cases, it would notbode well for the CRE’s chances of challengingthe proposed NSPS for CO 2.But it might not necessarily foreclosethe peer-review argument. As statedabove, in American Petroleum the D.C.Circuit’s analysis was limited to thediscretionary (“should” versus “shall”)nature of the EPA’s internal guidelinespromulgated in 2002. Not subject toconsideration in American Petroleum,however, was the OMB’s 2005 FinalInformation Quality Bulletin for PeerReview 36 (bulletin).The OMB’s 2005 bulletin andHISAsThe bulletin, like the EPA’s 2002document, established a range of discretionaryguidelines relating to peerreview of “influential scientific information”disseminated by governmentagencies. 37 But the bulletin further imposesstricter, mandatory requirementsapplicable to HISAs, which the bulletinnotes are a subset of “influential scientificinformation.” 38 The bulletin definesa HISA as information that could “havea potential impact of more than $500million in any year, or ... [i]s novel,controversial, or precedent-setting orhas significant interagency interest.” 39For HISAs, the bulletin requires thatagencies select a multidisciplinary poolof peer reviewers and recommends thatagencies solicit outside nominations forthis purpose. 40 The reviewers must beindependent of (not employed by) theagency and must be free from actualor apparent conflict of interest. 41 Publicnotice and opportunity for public commentare mandatory. 42 Each of theserequirements is in addition to the morebroad guidelines for influential scientificinformation, and the bulletin alsoimposes enhanced transparency andmanagement requirements. 43Seeking a new position?Need a new associate?The Florida BarCareer Centercan help!Whether you are an attorney seeking a new position in Florida oran employer who needs a new associate for your legal practice, TheFlorida Bar Career Center is just a click away at www.floridabar.org.Job seekers can search available jobs, create a FREE job seekerprofile and even post a resume anonymously.Employers can reach qualified professionals by posting jobs for areasonable fee and creating a FREE employer profile.Just click on the link above to get started!flabaroutofstaters.org 11 State-to-State — Summer 2014

Carbon capture, continuedNSPS compliance with the IQAThe EPA’s proposed NSPS pointsto four utility-scale electric generationprojects, in various stages of developmentor construction (but nonecompleted), as evidence that CCS isappropriate to consider the best systemfor emission reduction. 44 Three ofthose four are U.S. projects that havebenefitted from over $2.5 billion ingovernment assistance in the form ofDepartment of Energy grants and investmenttax credits pursuant to theEnergy Policy Act of 2005. 45 One, SummitPower’s Texas Clean Energy Project,received over $1 billion by itself. 46While the proposed NSPS does notcontain cost estimates, 47 these largeamounts of government aid suggestthat CCS implementation under theproposed rule would easily surpass the$500 million HISA threshold. Even if itdidn’t, it is apparent that CCS is “novel,controversial, or precedent-setting,” 48so the science upon which this technologyis based would almost certainlyqualify as a HISA. 49Despite this, the proposed ruleevinces no effort by the EPA to complywith the OMB bulletin’s enhancedmandatory peer-review requirementsfor HISAs. 50 Still, given the weightof case law holding that the IQA createsno judicially enforceable rightsand the attendant ambiguity as to thedistinctions between the Prime Timeand American Petroleum holdings, theCRE’s prospects of successfully prevailingon a challenge in this regard aretenuous at best.Prime Time will likely remain anoutlier as the only precedent remotelysupporting the notion that the IQA isjudicially enforceable. If the CRE ora similarly situated plaintiff were tochallenge the peer-review methodologyof the proposed NSPS in the context ofthe IQA and the OMB bulletin, the D.C.Circuit would likely follow the FourthCircuit’s reticence and its own precedentin American Petroleum to resistgranting relief on these grounds. Evenif such a challenge were successful, itwould only delay implementation forthe time it would take the EPA to remedythe deficiency, unless the results ofthe peer review showed that CCS wasnot viable or feasible as a system ofemissions reduction.ConclusionOpponents of the proposed NSPShave attacked the rule from many differentangles. 51 The IQA theory assertedby the CRE in its February letterto the EPA administrator is an interesting,but possibly far-fetched, addition tothose challenges. While it is facially sufficientbecause the science behind CCSqualifies as a HISA, the uncertaintysurrounding the enforceability of theIQA and its implementing regulationscasts doubt on this particular theory’sprospects for success.Endnotes1 § 111(f), 42 U.S.C. § 7411(f) (2012).2 Standards of Performance for Greenhouse GasEmissions from New Stationary Sources: Electric UtilityGenerating Units, 79 Fed. Reg. 1,430 (EPA Jan. 8, 2014).3 EPA, Carbon Dioxide Capture and Sequestration,http://www.epa.gov/climatechange/ccs/ (accessed Apr. 7,2014).4 79 Fed. Reg. at 1,433. Large natural gas-fired plantswould be further limited to 1,000 lbs./MWh. Id.5 Juan Carlos Rodriguez, EPA Delays GreenhouseGas Emissions Rule For Public Input, Law360(March 5, 2014), available at http://www.law360.com/articles/515523 (reporting that “[t]he proposed rule hasdrawn fire from energy industry groups that have calledit a ‘death sentence’ for coal power”).6 44 U.S.C. § 3516 (2012). The IQA is also commonlycalled the Data Quality Act. Tammy P. Tideswell, TheInformation Quality Act: An Environmental Primer, 51Naval L. Rev. 91 (2005).7 Letter from Jim J. Tozzi, Advisory Board Member,Center for Regulatory Effectiveness, to Gina McCarthy,Administrator, EPA 1 (Feb. 3, 2014), available at http://www.thecre.com/forum10/wp-content/uploads/2014/02/letter-to-EPA-on-peer-review-ff2.pdf8 Chris Mooney, The Republican War on Science103 (2005).9 See Final Information Quality Bulletin for PeerReview, 70 Fed. Reg. 2,664, 2,675 (OMB Jan. 14, 2005).10 Treasury and General Government AppropriationsAct of 2001, Pub L. No. 106-554, § 515, 144 Stat.2,763A-153 to 2,763A-154 (Dec. 21, 2000).11 Id.12 44 U.S.C. § 3501 et seq. (2012).13 Guidelines for Ensuring and Maximizing theQuality, Objectivity, Utility, and Integrity of InformationDisseminated by Federal Agencies; Republication, 67Fed. Reg. 8,452.14 Tideswell, supra note 6, at 112-13.15 67 Fed. Reg. at 8,453-54.16 Supra text associated with note 11.17 67 Fed. Reg. at 8,453.18 Id.19 See Tideswell, supra note 6, at 104 (quotingRobert Gellman, What, You Haven’t Heard about Section515?, Government Computer News, http://gcn.com/Articles/2001/08/16/INFOPOLICY.aspx?Page=1).Because this paper focuses on the peer-review requirementsdiscussed infra at the text associated with notes 38-44, detailed analysis of the constituent components(objectivity, utility and integrity) is beyond its scope.20 Salt Inst. v. Leavitt, 440 F.3d 156, 158 (4th Cir.2006).21 599 F.3d 678 (D.C. Cir. 2010).22 Id. at 679.23 Single Stick, Inc. v. Johanns, 601 F. Supp. 2d 307,316-17 (D.D.C. 2009) (citing Salt Inst., 440 F.3d at 159),aff’d in part, rev’d in part sub nom. Prime Time, 599 F.3d678.24 Prime Time, 599 F.3d at 684-86.25 Id. at 686.26 Appellees’ Petition for Panel Rehearing at 2, PrimeTime (No. 09-5099), available at http://thecre.com/pdf/20100603_Government_DQA_Appeal_to_Court.abrev.pdf27 William S. Jordan III, D.C. Circuit – Is theInformation Quality Act Ready for Prime Time?,35 Administrative & Regulatory Law News 17(Summer 2010), available at http://www.americanbar.org/content/dam/aba/migrated/sections/adminlaw/PublicDocuments/69034_ABA_Summer2010_FINAL.authcheckdam.pdf (noting that “[t]he decision sodisturbed the Government that it asked the court to clarifythat it had not intended such an implicit result”).28 684 F.3d 1342, 1349 (D.C. Cir. 2012), cert. denied,133 S. Ct. 1724 (2013).29 Id. at 1349.30 Id. at 1345.31 Id. at 1348.32 Id. at 1348-49.33 Id. at 1348 (quoting the EPA, Guidelines forEnsuring and Maximizing the Quality, Objectivity,Utility, and Integrity of Information Disseminated bythe Environmental Protection Agency 11 (Oct. 2002))(emphasis added).34 Id. at 1349.35 Id.36 70 Fed. Reg. 2,664.37 Id. at 2,675.38 Id. at 2,665.39 Id. at 2,675.40 Id. at 2,676.41 Id.42 Id.43 Id.44 79 Fed. Reg. at 1,434. The four facilities areSouthern Company’s Kemper County Energy Facility,SaskPower’s Boundary Dam CCS Project, SummitPower’s Texas Clean Energy Project and the HydrogenEnergy California Project. Id.45 Plaintiff’s Complaint for Declaratory andInjunctive Relief at 6-8, Nebraska v. EPA, No. 4:14-cv-3006 (D. Neb. filed Jan. 15, 2014).46 Id. at 7.47 79 Fed. Reg. at 1,430-519.48 70 Fed. Reg. at 2,675.49 See e.g. Rodriguez, supra note 5 (noting that “[c]ontroversy has surrounded the EPA’s proposal” andthat the rule was already the subject of one lawsuit(specifically Nebraska, cited supra at note 46)).50 79 Fed. Reg. at 1,430-519.51 See e.g. Nebraska, cited supra at note 46 (inwhich the state has challenged the NSPS on theground that it violates the Energy Policy Act of 2005’sprohibition on the consideration of facilities receivingfinancial assistance pursuant to the Act as “adequatelydemonstrated” for the purpose of setting emissionslimitations); Anthony Adragna, White House ‘StronglyOpposes’ Bill to Curb EPA Power Plant Regulations,Bloomberg BNA Energy and Climate Report (March4, 2014) (reporting on a bill introduced in the House ofRepresentatives, H.R. 3826, 113th Cong. (2014), whichwould prohibit “regulations on the greenhouse gasemissions of new plants ... until technologies like carboncapture and sequestration had been demonstrated at sixdifferent sites for at least one year”).flabaroutofstaters.org 12 State-to-State — Summer 2014

Complexities of life insurance policyvaluationby Michael F. Amoia, Jon B. Mendelsohn and Robert C. SlaneOur gift tax rules are based on a simple theory—“whereproperty is transferred for less than adequate and full considerationin money or money’s worth, then the amount by whichthe value of the property exceeded the value of the considerationshall be deemed a gift … .” 1 Therefore, before anythingelse is done, the parties involved must know the value of theasset(s) being transferred. Sounds simple, but it is sometimesfar from it. For years we have relied on the general rule of thevalue agreed to by a “willing buyer and willing seller, under nocompulsion to sell.” 2 However, there are a number of uniqueand/or non-marketable assets that may fall outside this rule.We must approach these hard-to-value assets with differentmethods of valuation.Life insurance is one such hard-to-value asset. Unfortunately,valuation rules for life insurance are out-of-date andtoo rigid to cover all situations. At a time when only yearlyrenewable term and whole life insurance products existed,a set of rules under the gift and estate regulations were developedto look at policy reserves. 3 These rules assume thata whole life policy, in a simplified description, is a contractin which the owner pays a premium based on the discountedfuture value of the death benefit—based on certain actuarialassumptions and discount factors. Alternatively, a term insurancecontract is an arrangement in which an owner pays apremium based on the actuarial cost of someone dying in theyear the premium is paid—with coverage ending at the end ofthe year with no value and a new premium paid the next yearbased on a new set of assumptions (hence the name “yearlyrenewable term”). Using these valuation methods may havebeen appropriate at one time. However, the world has changedand these rules are outdated as well as subject to insurancecarrier manipulation. We now have universal life, variableuniversal life, index universal life, universal life with secondaryguarantees, level term contracts, refund option contractsand many other products. Applying the old, narrow rules tonew policies is impractical and unrealistic.For life insurance carriers, not only have the productschanged, but so have the methods they use to account forreserves. Each carrier has a different method, complicatingmatters further. As a result, when asking a carrier for a policyvalue, it is a lot like going to the county fair and looking intothe “funny” mirrors—depending on which mirror you lookinto, you will appear wider, thinner, taller or shorter. The onlyconstant in this process has been the reality that the policyvalue from the carrier is not what one would have expected.We are only sure of a policy’s value at two points—the daybefore a premium is paid and the date of death of the insuredwhen the insured owned the contract. 4 Otherwise, there are toomany variables to consider in the process that cannot fit into asingle set of rules that were last modified almost 40 years ago. 5Valuation may be an issue when…Most practitioners recognize that it is important to establishthe value of an asset when evaluating the tax implicationsof changing ownership, either by gift or compensatory situations,or when calculating the value in one’s gross estate.However, there are a number of other situations that mightnot be as obvious. For example, the termination of a non-equitycollateral assignment under a private split-dollar arrangementtechnically triggers a transfer for gift and income taxpurposes, even though the legal ownership does not change. 6Value is also important when calculating required minimumdistributions from a profit-sharing plan that owns life insurance.Another example is working with a private foundationthat is trying to determine the fair market of its assets forthe “5% distribution rule” when life insurance is one of theassets of the foundation. 7 In the case of a corporate acquisition,it is critical to know the value of life insurance that mayhave been maintained on the corporate books for years onkey executives. There are numerous other examples. 8 In anyof these situations, documenting the value of the policy maybe more important than the rest of the transaction.The basic rulesGenerally, the value of property for tax purposes is its fairmarket value (FMV). It appears in approximately 200 sectionsin the Internal Revenue Code and 900 sections of TreasuryRegulations. 9 Unfortunately, defining FMV is extremely difficultand may, depending on the situation, have differentmeanings. According to Black’s Law Dictionary (9 th Ed.), FMVis “the price that a seller is willing to pay on the open marketand in an arm’s-length transaction; the point at which supplyand demand intersect.” A similar definition appears throughoutthe tax rules. Specifically, Treas. Reg. 25.2512-1 makes itclear that FMV is a value in which property would changehands between a willing buyer and a willing seller, neitherbeing under any compulsion to buy or to sell, and both havingreasonable knowledge of relevant facts. The same regulationsgo on to say that the value of a particular item of property isnot the price that is a result of a forced sale or in a marketother than that in which such item is most commonly sold tothe public.Unfortunately, there are some items that may not have anopen market, such as the stock of closely held corporationsor the stock of corporations where market quotations are notavailable. In such a situation, Rev. Rul. 59-60 states that “allother available financial data, as well as all relevant factors affectingthe fair market value must be considered for estate taxand gift tax purposes.” 10 Most importantly, though, it states:[a] determination of fair market value, being a questionof fact, will depend upon the circumstances in eachcase. No formula can be devised that will be generallyapplicable to the multitude of different valuation issuesarising in estate and gift tax cases. Often, an appraiserwill find wide differences of opinion as to the fair marketvalue of a particular stock. In resolving such differences,he should maintain a reasonable attitude in recognitionof the fact that valuation is not an exact science. A soundvaluation will be based upon all the relevant facts,but the elements of common sense, informed judgmentflabaroutofstaters.org 13 State-to-State — Summer 2014

Life insurance valuation, continuedand reasonableness must enter into the process ofweighing those facts and determining their aggregatesignificance. 11Life insurance, until recently, was considered one of theseitems without an open market. In fact, the only party willingto purchase an in-force contract was the insurance carrierthat had issued the contract, in the form of a surrender value.Therefore, life insurance has followed a unique set of rulesin which Treas. Reg. 25.2512-1 directs us to life insurancevaluation rules under 25.2512-6. 12 (Now, we have to add Rev.Proc. 2005-25 for compensatory situations.) 13Treas. Reg. 25.2512-6 (guidance on the valuation of a lifeinsurance policy for gift tax purposes) was originally issued in1963 and most recently was amended 40 years ago, in 1974. 14As mentioned previously, this regulation was issued at a timewhen only whole life and term insurance policies were availableto the public. As such, the rules were based on simplerpolicy design that had a surrender value and a death benefit.The rules looked at three stages in the lifecycle of a lifeinsurance policy: 1) newly issued policies; 2) paid-up/singlepremiumpolicies; or 3) policies requiring ongoing premiums.The most straightforward regulations apply to newly issuedcontracts, where the general rule is that the value of a newlypurchased life insurance policy is “the cost” of the contract(premiums paid). 15 Consequently, this method should requirea simple accounting of premiums paid into the contract. Theonly outstanding item is defining what constitutes a newcontract. Generally, we assume it is a contract within its firstyear. However, examples in the regulations for life insurancevaluation cite an “existing” contract (and therefore, not new)as one that has been in force for nine years. 16 As such, onewould ask if a contract was “new” until then and if the “costs”method of valuation could be used for more than one year.Unfortunately, there is no authority on this point, so mostpractitioners consider the first year “costs” or premium andother amounts paid to the insurance carrier—including 1035exchange amounts.But what about a life insurance policy in which no furtherpayments are to be made to the company (e.g., a singlepremiumpolicy or a paid-up policy)? The regulations underexample 3 state the value shall be an amount that the companywould charge for a single-premium contract of the samespecified amount on the life of a person of the attained age ofthe insured (also known as the replacement cost). 17 However,Rev. Rul. 78-137 goes further. It states that the economicbenefits of a single-premium life insurance policy consist ofan entire bundle of rights including the right to surrender thepolicy, the right to retain it for investment virtues, the rightto borrow the cash surrender value of the policy and the rightto payment of the face amount on the death of the insured. 18In-force policies with ongoing premiums have a completelydifferent approach. Making specific reference to a contractthat has been “in force for some time,” the value may be approximatedby using the interpolated terminal reserve plusunearned premiums (hereafter referred to as ITR). 19 However,the regulations make it clear that this method may not beused if “because of the unusual nature of the contract, suchapproximation is not reasonably close to the full value.” Also,if there is a concern of imminent death, then the valuationFlorida Bar CLEOnline CLE – 24/7Since August 2000, The Florida Bar has been offeringits popular quality CLE programs as online, on-demandseminars through a partnership with LegalSpan.Online CLE programs offer the flexibility of viewing programsat your own pace, anytime, anywhere. Whether afirst-time or net-savvy user, Florida attorneys are findingthat online CLE programs are time saving and easy to use.The Florida Bar’s catalog of online and downloadable programsis robust, offering more than 200 programs, coveringall practice areas. By participating in these programs,attorneys can save time and money, without sacrificingcontent. The complete catalog of Florida Bar CLE coursescan be viewed at www.floridabar.org/cle by accessing theLegalSpan link under Online Courses.Audio CD /Video DVDproducts available28 PRACTICE AREASOVER 200 PROGRAMSFor a complete list of CDs / DVDs,visit www.floridabar.org/CLE.Click “Order Online” and search byCity, Course Number, Sponsor or Title.CDs and DVDs come with ElectronicCourse Materials unless otherwiseindicated.Survey of FloridaLaw 2013( Course 1741)~ and ~New Rule 2.526:Digital Accessibility ofDocuments ElectronicallyTransmitted to Florida Courts(Course 1468)Privilege & Work ProductProtection for Attorneysand Accountants in FederalControversies & Litigation(Course 1533)flabaroutofstaters.org 14 State-to-State — Summer 2014

Life insurance valuation, continuedshould be based on the shortened life expectancy and theprobability of collecting the death benefit. 20Historically, the Internal Revenue Service has looked toITR for valuing contracts. In PLR 9413045, insurance policieswere sold to a single trust created by the husband and wife.The IRS, citing the valuation standard for estate tax purposes(Treas. Reg. §20.2031-8), ruled that the interpolated terminalreserve plus unapplied premiums was the full value of thepolicies for purposes of the “adequate and full consideration”exception. Also, in PLR 201235006, a taxpayer sold a policybased on the policy’s “replacement value” as determined underTreas. Reg. §25.2512-6 (i.e., ITR) without raising any incomeor estate tax issues.However, in U.S. v. Past, 347 F.2d 7 (9th Cir. 1965) and U.S. v.Allen, 293 F.2d 916 (10th Cir. 1961), decisions from half a centuryago, the court found that if a property interest that wouldbe includible in the gross estate under the lifetime transferrules is transferred before death, any consideration receivedfor the transfer is not adequate and full unless it equals thevalue at which the property would have been included in thegross estate if it had been retained by the decedent. 21Carrier reporting: Form 712Reporting the gift value of a life insurance contract is generallyassociated with IRS Form 712. As noted in the instruction,this form is generally associated with gift and estatetax calculation and should be attached to the correspondinggift or estate tax form (Forms 709 and 706, respectively). Ifthe policy is not paid up, then the carrier must use the ITRvalue. 22 Or, if policy is paid up/single premium, the carriermust use cost. If Form 712 is not attached, the taxpayer mustprovide a full explanation of how the value was determinedfor adequate disclosure. 23Practice point: It should be noted that Form 712 is agift and estate tax form and is not specifically intendedfor income tax purposes (especially in determining PERCunder Rev. Proc. 2005-25) or policies being sold for fairand adequate consideration. Even so, some professionalsmay order the form to support certain valuation methods.A carrier officer must certify that the information on Form712 is true and correct. Therefore, once produced, the form’svalues are stated and irrevocable. Therefore, one should neverorder a Form 712 prior to requesting an estimated valueand understanding the implications. When working with anestimate, it may be possible (although extremely difficult) torequest an adjustment to the estimated value. Common adjustmentsmay include a value without a deficiency reserve(see description below) or a calculation closer to policy renewalwhen tax reserves decrease slightly.Also, term insurance contracts will have a value greaterthan unearned premiums. This is because most contractsare not yearly renewable terms. Certain actuarial rules putin place to account for a levelized premium structure requirea high level of reserves on these policies for the carriers. Asa result, the ITR or other forms of calculating reserve valuescan be significantly higher than unearned premiums (theperceived value for term insurance contracts).Further, it should be noted that each carrier has a differentway of calculating reserves. Even using exactly the sameset of facts, carriers often produce extremely different valuesbecause of their methodology. Knowing this prior to a plannedtransfer may be critical because it may allow one to transfercertain contracts with lower values and to reevaluate othercontracts with higher values.Why ITR can’t be the only value consideredAssuming ITR is being considered as a method for valuinga life insurance policy, the difficulty is that recent valuationsfor the insurance carriers have been void of common sense. Forexample, when a policy owner recently requested a value of hislife insurance policy from an insurance carrier after payingapproximately $840,000, the carrier provided the following:The values were calculated using AG38 with the deficiencyreserve since this is an NLG [No Lapse Guarantee]product. The NAIC reserve of $1,799,980 is brokendown as follows:Base Reserve = 551,926Axxx Basic Reserve = 781,377Axxx Deficiency Reserve = 466,677and here is a further statement regarding NLG:XXX Life (the “company”) interprets the interpolated terminalreserve (“ITR”) value for a universal life policy asthe NAIC statutory reserve. A policy’s ITR is determinedbased upon a policy’s statutory reserve. The statutoryreserve is the amount of the company’s liability underthe policy. NAIC Rules are intended to be conservative.For some policies, under certain conditions, the NAICreserve attributable to a policy’s no lapse guarantee featuremay result in a policy valuation that substantiallyexceeds the policy’s current account value, replacementcost, or sale value.To date, the IRS has not issued guidance with respect tothe valuation of the no lapse guarantee feature for estateand gift tax purposes. XXX Life, therefore, is providingtwo policy valuation statements: the NAIC statutoryreserve (Line 58A) and the policy’s current account value(alternate Line 58A). Ultimately, the fair market valuethat you report to the IRS is up to you.When requesting support for a carrier’s reserving calculation,the following options are available to a carrier:• Tax reserve—reserve value used in the determination ofthe carrier’s federal income tax, calculated according toIRS requirements 24• Statutory reserve—reserve reported in the carrier’s statutoryfinancial statement filed with the state insurance departments,calculated in accordance with the requirementsof the NAIC’s Accounting Practices and Procedures Manual• AG 38 reserve—reserve for a UL policy with a no-lapsesecondary guarantee is calculated using Actuarial Guideline38; AG 38 applies to calculations of both statutory andtax reserves• Deficiency reserve—the UL Model Regulation and theAG 38 both require the calculation of minimum reservesfor some policies; deficiency reserves are the excess of theminimum reserves over the UL Model Regulation reserveor the AG 38 basic reserveflabaroutofstaters.org 15 State-to-State — Summer 2014

Life insurance valuation, continuedOf course, there is no consistency on which method(s)are used by the carriers. As a result, there is a significantdifference in values given by carriers on similar contracts.Recent cases that tell a different storyAs discussed earlier, Rev. Rul. 59-60, although used to valueunmarketable stocks, sets the standard across so many levelsand truly summarizes the process of valuing an asset—including,in the opinion of the authors, a life insurance policy intoday’s environment. As a foundation, it states that “[a] soundvaluation will be based upon all the relevant facts, but theelements of common sense, informed judgment, and reasonablenessmust enter into the process of weighing those factsand determining their aggregate significance.” 25So, how are the recent cases consistent with life insurancevaluations? Although most of the recent cases have focused onincome tax issues, which still consider an analysis of ITR, thecourts have quickly realized this is not a simple process. Asthe tax court noted in Schwab v. Comm’r. (Feb. 7, 2011), “thefair market value of [life] insurance contracts can be a slipperyconcept.” 26 On appeal, the Ninth Circuit cited this quoteand added “a particular method for ascertaining value may beappropriate in one situation but inappropriate in another.” 27Although the case involved a dispute over the value of a distributionfrom a welfare benefit plan under 402(b), the case doeshighlight how one rule cannot be applied across all contracts.Specifically, in Schwab, the tax court ruled that the participantsin a terminating welfare benefit § 419A(f)(6) multipleemployer plan were required to include in income the FMVof the variable universal life insurance policies distributed tothem. Even though the net surrender value was a negativevalue, the court took a different approach than others to findthat the FMV to be included in income was the value of thepaid-up insurance coverage remaining on the policies as of thedate of distribution—much like a cash flow analysis, which iscommonly used by appraisers in determining FMV. 28In the Estate of Kahanic, the tax court found, by applying asimilar valuation methodology as in Schwab, that a life insurancepolicy was included in the decedent’s estate because thepolicy was worth more than zero. 29 What was also interestingin this case was the fact that the court realized there was anadditional value in a no-lapse feature that extended coveragetwo years after the decedent’s death. Therefore, looking at allthe parts and not just the ITR, the court supported an alternativemethod for valuing a life insurance policy.The tax court found in Matthies v. Commissioner that theinterpolated terminal reserve value method did not apply in asituation valuing a life insurance policy sold by a profit-sharingplan to the taxpayer. 30 Instead, the “entire cash value,” not reducedby surrender charges, was the applicable standard underSec. 402. 31 Again, the court realized that there may be morethan one way to establish the value of a life insurance policy.Other methods—willing buyer and willing sellerWe started with a foundational rule that the FMV of an assetis measured by the price at which an asset would changehands between a willing buyer and a willing seller under nocompulsion to sell. Ironically, this methodology has not beenwidely considered in valuing a life insurance policy until recently.Of course, also until recently there has been no marketfor a life insurance policy other than surrendering a contractback to the issuing carrier. However, there are other optionsavailable in today’s mature secondary market. 32The secondary market for life insurance has reached atipping point in the frequency and volume of transactions,the regulations implemented by the states and the overalltransparency throughout the market. The secondary marketfor life insurance has continued to grow for many reasonsin spite of the credit crisis in 2008, and it has helped policyowners garner billions over the stated cash surrender value oftheir contracts. Both domestic and global buyers are attractedto the secondary life insurance market due to the relativelystrong performance of life insurance carriers during the 2008-2009 downturn. Life insurance is also appealing to investorslooking for non-correlated assets because it is not tied to theequity markets or other traditional markets. In addition, sophisticatedbuyers such as pension plans, reinsurers, privateequity, municipalities and others have realized that they candeploy large amounts of capital while benefiting from an agingpopulation that has a more predictable mortality. 33The methodology to estimate the FMV of a client’s life insurancepolicy in the secondary market is similar to valuing otherassets. Specifically, the process employs standardized industrypractices and analytics to combine an analysis of the insurancecontract, policy values, required capital outlay (premiums), thelife expectancy of the insured(s) and a comparison to contractsthat have sold in recent history. Because almost all policytypes may qualify for settlement, newer policy structures andfeatures can be evaluated by the market to determine if, forexample, a policy feature truly adds value or is just a marketingfeature created by the insurance company to sell the initialcontract. After evaluating all parts, a value can be providedbased on what a willing buyer would pay if a policy ownerwas willing to sell. 34 Although there is no specific authoritypertaining to the use of the secondary market for valuing a lifeinsurance policy, in the authors’ opinion it is now a reasonableplace to seek additional information when analyzing the FMVof a life insurance policy and should be a component in theprocess. In fact, failure to consider such a value may triggersignificant transfer taxes and/or fiduciary liability—especiallyif the value is significantly higher than the ITR.ConclusionAs with other assets, there is no one simple method todetermine the value of a life insurance contract. What hasmade this process even more complicated is the fact that lifeinsurance policies have become much more complex and aredesigned with so many layers of features that most professionaladvisors are unaware of the complexities inherent insuch a contract. Furthermore, each carrier has determined itsown methodology for calculating reserves, therefore removingany consistency in the process. As highlighted in Rev. Rul. 59-60, the FMV of an asset is “based upon all the relevant facts,but the elements of common sense, informed judgment andreasonableness must enter into the process (emphasis added) ofweighing those facts and determining their aggregate significance.”Knowing this, relying on outdated valuation methodsprovided in 40-year-old regulations to report the transfer ofa life insurance policy is telling only part of the story andis unreasonable. An appropriate analysis must include ITRprovided by the carrier as well as an analysis of the value aflabaroutofstaters.org 16 State-to-State — Summer 2014

Life insurance valuation, continuedwilling buyer will pay for an item that a willing seller will sell,a review of the cash/account value, how long the contract willsupport itself without any further premiums (as in Schwab),replacement value and any other reasonable method that maybe considered for other hard-to-value assets.Copyright, 2014, Michael F. Amoia, Jon B. Mendelsohn &Robert C. Slane. All Rights Reserved.Endnotes1 IRC Sec. 2512.2 Treas. Reg. §25.2512-6 & §20.2031-8 [T.D. 6680, 28 FR 10872, Oct. 10,1963, as amended by T.D. 7319, 39 FR 26723, July 23, 1974].3 Id. Rev. Proc. 2005-254 TAM 9323002 (It was determined, that under state law, no contract existedfor insurance until the first premium had been paid.); IRC Sec. 2042 (The valueof the gross estate shall include the value of the death benefit.)5 Fn 2.6 Treas. Reg. 1.61-22(c)(1)(ii)(B)(2).7 Treas. Reg. 53.4942(2)-2(a)(4) set the rules for valuations as “… all assetsshall be valued at their fair market value. Fair market value shall be determinedin accordance with the rules set forth in paragraph (c)(4) of § 53.4942(a)-2,except in the case of assets which are devoted directly to the active conductof the foundation’s exempt activities and for which neither a ready marketnor standard valuation methods exist (such as historical objects or buildings,certain works of art, and botanical gardens).” Under paragraph (c)(4)(iv)(c), an“acceptable method” for valuation would be those used under IRC § 2031 (andapplicable rules). Therefore, under § 2031, one has to look at the valuation oflife insurance under Treas. Reg. §20.2031-8 [T.D. 6680, 28 FR 10872, Oct. 10,1963, as amended by T.D. 7319, 39 FR 26723, July 23, 1974]. For a contractnot paid-up or a single premium, the general rule under paragraph (a)(2) isinterpolated terminal reserve (ITR) plus unearned premiums.8 These include transferring a policy from one entity to another,completing a business valuation, valuing a convertible term contract for abuy/sell or key executive, M&A or bankruptcy transactions and exit-planningrecommendations.9 John A. Bogdanski, Federal Tax Valuation par. 1.01 (2012).10 Rev. Rul. 59-60 preamble.11 Id. at 3.01 (emphasis added).12 The estate tax rules for incidents in a contract mirror the gift tax rules.See Treas. Reg. 20.2031-8.13 Prior to Rev. Proc 2005 -25, the IRS stated its desire to have consistencybetween the rules for valuing life insurance policy in gift and compensatorysituations (Rev. Rul. 59-195 (1959-1 C.B. 18).14 Fn 2.15 Treas. Reg. §25.2512-6(a), Ex. (1).16 Id. Ex. (3).17 Treas. Reg. §25.2512-6(a); Treas. Reg. §20.2031-8(a)(2).18 Guggenheim v. Rasquin, 312 U.S. 254 (1941), Ct. D. 1487, 1941-1 C.B. 445;Candler v. Allen, above at 437.19 Treas. Reg. §25.2512-6(a), Ex. (4); Treas. Reg. §20.2031-8(a)(2).20 (Estate of Pritchard, 4 TC 204 (1944)).21 See Estate of Silverman, 61 T.C. 338 (1973), where only a portion ofthe death benefit was included in the gross estate under Sec. 2035 based acalculation of premiums paid after the policy was transferred.22 IRS Form 712, line 58a.23 See Estate & Gift Tax Regulations: §301.6501(c)-1. Without adequatedisclosure, then any gift tax imposed at any time by chapter 12 of subtitle B ofthe Internal Revenue Code on the transfer may be assessed, or a proceeding incourt for the collection of the appropriate tax may be begun without assessment.24 IRC Sec. 807(d).25 Rev. Rul. 59-60 at 3.01 (emphasis added).26 Schwab v. Comm’r., 136 T.C. 120, 131 (2011); aff’d Schwab v. Comm’r.,2013 PTC 80 (9th Cir. 4/24/13) (Although the case involved a dispute over thevalue of a distribution from a welfare benefit plan under 402(b), the case doeshighlight how one rule cannot be applied across all contracts.)27 Schwab v. Comm’r., 2013 PTC 80 (9th Cir. 4/24/13).28 The court determined that the amount distributed to the taxpayerswas the amount calculated by applying the base rates for the guaranteedmaximum monthly cost of insurance rates to the number of days that thetaxpayers continued to have insurance coverage. Also see Estate of Kahanicv. Commissioner; T.C. Memo. 2012-81. In determining that a life insurancepolicy was included in the decedent’s estate because the policy was worth morethan zero, the court applied a similar valuation methodology as in Schwab.In addition, the court realized there was a value in a no-lapse feature thatextended coverage two years after the decedent’s death—without a premiumpayment being made.29 Estate of Kahanic v. Commissioner; T.C. Memo. 2012-81.30 134 T.C.141 (2010).31 Although prior to Rev. Proc. 2005-25.32 Also known as the Life Settlement Market.33 The most attractive policies to buyers are those that were issued standardor preferred where there has been a change in the insured’s health since issue.Ideal policies were issued by highly rated insurance carriers, with very lowcredit risk or volatility, and have a manageable carrying cost or future premiumstreams. This is important due to the illiquid nature of the asset itself. Buyersin the current market require returns similar to other alternative investments,as they are committed to a longer duration and have to maintain considerablecapital commitments and reserves.34 Of course, it is also possible there is no value in excess of the policy’s cashvalue because of the factors considered. If this is the case, then such informationshall be considered additive to other valuation methods being considered.Stay current on ethics:Free publication now availableIn the past, out-of-state Florida Bar members have found that it can be difficult to stay abreast of ethics developments inFlorida. Now, two free resources are available to help you stay current in this important area.The “2013 Florida Legal Ethics Review” by Tim Chinaris is available free of charge. This comprehensive compendiumconcisely summarizes developments in Florida legal ethics during 2013, including rule changes, cases and ethics opinionsof interest. Arranged topically, the subjects covered are: Rule Changes (including Proposed Rule Changes); Advertising;Attorney-Client Relationship; Candor Toward the Tribunal; Confidentiality and Privileges; Conflicts of Interest (IncludingDisqualification); Disciplinary Proceedings; Fees (Including Attorney’s Liens); Ineffective Assistance and Right to Counsel;Law Firms; Legal Malpractice; Professionalism; Public Official Ethics and Public Records; Rules and Ethics Opinions; TrialConduct; Trust Funds; Unauthorized Practice of Law; and Withdrawal From Representation.To get your free copy, just send an email request to tchinaris@gmail.com. A copy will be emailed to you in PDF format.And stay up-to-date with legal and judicial ethics on a daily or weekly basis by visiting the comprehensive ethics website“sunEthics” (www.sunethics.com). This site offers summaries of cases and ethics opinions as they are released; links to everythingrelated to Florida legal ethics, judicial ethics, bar admissions and professionalism; and links to ethics resourcesthroughout the nation.flabaroutofstaters.org 17 State-to-State — Summer 2014

Division News2014 Report of Nominating CommitteeProposed officers and executive council membershipThe Nominating Committee, composed of Bard Brockman, Brian Burgoon, Duffy Myrtetus, Don Workman andMindi Wells, files this report and recommended slate of executive council members and proposed officers for considerationat the Out-of-State Division’s annual meeting, to be held on Friday, June 27, 2014, at 3:30 p.m., in Orlando.In accordance with the OOSD’s bylaws, nominations from the floor may supplement the recommendations of theNominating Committee. The following persons noted in bold are proposed to serve in their respective offices as noted:EXECUTIVE BOARD NOMINATIONSTimothy P. Chinaris (Nashville, Tenn.) PresidentChris Marquardt (Atlanta, Ga.)President-ElectD. Pearson Beardsley (Atlanta, Ga.) TreasurerTiffany McKenzie (Atlanta, Ga.)SecretaryDonald A. Workman (Washington, D.C.) Immediate Past PresidentEXECUTIVE COUNCIL (INCLUDES EXECUTIVE BOARD)Brian D. Burgoon (Atlanta, Ga.)BOG MemberIan M. Comisky (Philadelphia, Pa.)BOG MemberEric L. Meeks (Cincinnati, Ohio)BOG MemberRichard A. Tanner (Verona, N.J.)BOG MemberJohn C. Voorn (Palo Heights, Ill.) At-Large Member Term expires 2016W. Bard Brockman (Atlanta, Ga.) At-Large Member Term expires 2016Larry Kunin (Atlanta, Ga.) At-Large Member Term expires 2016Mindi L. Wells (Columbus, Ohio) At-Large Member Term expires 2015E. Duffy Myrtetus (Richmond, Va.) At-Large Member Term expires 2015Bill A. Lee III (Waterville, Me.) At-Large Member Term expires 2015TBDYLD LiaisonA liaison to the Young Lawyers Division will be appointed by the YLD president, pursuant to Art. 4.3(A) of theOOSD’s bylaws.Standing committee chairs will be appointed by the president for the following standing committees, pursuant toArt. 5 of the OOSD’s bylaws: CLE; Information; Budget; and Multi-State Practice. Special committees are approvedby the president with the concurrence of the Executive Council, and the chair of each special committee appointedby the president shall also be a member of the Executive Council.The Nominating Committee also acknowledges the recommendations of its members that greater diversity in termsof geography, gender, etc., should be a continuing consideration in identifying prospective candidates.flabaroutofstaters.org 18 State-to-State — Summer 2014

Division NewsYour opportunity to be involvedCommittees seek membersThe Out-of-State Division of The Florida Bar is seekingmembers who are interested in serving and becominginvolved with the OOSD.Members can serve and become chairs of the followingcommittees of the division:• Budget Committee• CLE Committee• Communications Committee• Membership & Long-Range Planning• Nominating CommitteeIf you are interested in becoming active with the OOSD,please send an email and include your name, contactinformation and any other information you would likeus to consider. Individuals who are interested in servingshould provide a written request for consideration to me atdworkman@bakerlaw.com and a courtesy copy to our baradministrator, Willie Mae Shepherd, at wshep@flabar.org.On behalf of the entire Out-of-State Division, I lookforward to receiving requests for consideration from allinterested individuals. Thank you.—Donald WorkmanOut-of-state members ofYLD board electedBurgoon, Comisky reelectedto Board of GovernorsB. BURGOON I. COMISKYOut-of-state attorneys Brian D. Burgoon and Ian M.Comisky were both reelected to The Florida Bar Board ofGovernors in December 2013. Their new two-year termsrepresenting out-of-state lawyers will commence at TheFlorida Bar Annual Convention in June.Burgoon practices in the areas of business litigationand disputes, civil litigation and personal injury withThe Burgoon Law Firm LLC in Atlanta. Burgoon chairsThe Florida Bar Disciplinary Review Committee and hasserved on The Florida Bar’s Executive Committee since2011. In addition to his service on the Board of Governors,Burgoon is president-elect of the University of Florida Collegeof Law Alumni Council, and he serves on the board ofdirectors of the University of Florida Alumni Association.Comisky is a partner at Blank Rome LLP in Philadelphia.He practices in the areas of white collar criminaldefense, tax litigation and complex corporate and commerciallitigation. Comisky chairs The Florida Bar’sInvestment Committee. He also serves as special projectschair for the ABA Tax Section and serves on the boards ofdirectors of the Citizens Crime Commission of the DelawareValley, Historic Philadelphia Inc. and the Madlynand Leonard Abramson Center for Jewish Life.Mark your calendarL. UTIGER R. LeBLANCLeslie A. Utiger was reelected to her second two-yearterm as an out-of state representative on the board ofthe Young Lawyers Division in December 2013. Utigeris an associate with Akerman LLP’s consumer financelitigation and compliance practice group in Dallas, Texas.Utiger is a graduate of Vanderbilt University and theUniversity of Florida College of Law.Ryan Eastmoore LeBlanc has been newly elected to theYLD board. LeBlanc received her undergraduate and lawdegrees from the University of Florida, and she is an associategeneral counsel for Yingli Green Energy AmericasInc. in San Francisco. Her term will begin at The FloridaBar Annual Convention in June.June 25-28, 2014The Florida Bar Annual ConventionGaylord Palms Resort and Convention CenterOrlando, FloridaFriday, June 27, 2014 • 3:30-5:30 p.m.OOSD Executive Council Meeting &Annual Membership Meeting(In Conjunction With TFB Annual Convention)Meeting Room: St. George 106flabaroutofstaters.org 19 State-to-State — Summer 2014

Board of Governors’ updateWe want you to stay informed on actions taken by TheFlorida Bar Board of Governors. So, here is the latest Boardof Governors’ update.The Florida Bar Board of Governors met on Mar. 28, 2014.The major actions of the board and reports received included:With the 2014 Legislative Session nearing the halfwaymark, The Florida Bar continues to advocate for court fundingincluding requests for staff pay and retention as well asdistrict and trial courts’ maintenance/repair and technologyneeds. Initial budgets released by the House and the Senateare good starting points. An April 1 Florida Bar News articleprovides additional court system budget request details.Both houses have approved civil legal assistance funding—$2 million in the Senate and $1 million in the House—andadvocates are working to educate the Governor’s Office on theimportance of the program. Bills that would exempt certainactivities from criminal penalties for the unlicensed practiceof law are being opposed by the Bar. For weekly summariesof legislative activities related to bills being tracked by TheFlorida Bar, please visit www.floridabar.org/session.Florida Bar President Eugene Pettis announced his appointmentof a task force to bolster diversity among Florida’sjudges and members of Judicial Nominating Commissions(JNCs). The task force’s recommendations will also assistthe governor in implementing F.S. 43.291(4): In making anappointment, the Governor shall seek to ensure that, to theextent possible, the membership of the commission reflects theracial, ethnic, and gender diversity, as well as the geographicdistribution, of the population within the territorial jurisdictionof the court for which nominations will be considered. TheGovernor shall also consider the adequacy of representationof each county within the judicial circuit. In May, The FloridaBar will be nominating slates of three candidates for two vacancieson each JNC and will be sending those slates to Gov.Rick Scott for appointments. The Bar received 679 applicationswith approximately 45 percent falling into a category fordiversity: women, Hispanics, African-Americans and Asians.Lawyer Referral Service rules amendments were approvedby the board and will now be submitted to the Supreme Court.The lawyer referral service rule amendments are a multi-yeareffort that began with the Special Committee on LawyerReferral Services. Among the changes are: requiring lawyerswho belong to lawyer referral services to report their participationto the Bar; requiring that clients make the initial contactafter being referred to a lawyer; and strictures againstsuggesting a referred client use other services provided bythe referral service—such as medical treatment—unlessthe lawyer is satisfied that the referral is in the client’s bestinterest and the client gives written confirmation that he orshe has been told about the potential conflict. Proposed newamendments to trust account rules were also approved forsubmission to the court.A new policy regarding advertising filing fees was approved.Any change of any kind to an advertisement rendersthe ad a new ad with a new filing fee of $150 per timely filedad and $250 per untimely filed ad. The only exception is arevision to an existing ad that is solely to comply with a Baropinion that the ad does not comply with the lawyer advertisingrules, for which no additional fee will be charged. TheBoard of Governors also directed staff to monitor the cost ofprogram administration compared with fees and report backwhether a reduction in filing fees is warranted. The new feeswill be effective July 1. More information will be posted onthe Advertising Rules webpage.The Communications Committee of the board receivedapproval to expand the Bar’s social media use to includeLinkedIn, Google+, YouTube and Pinterest. In addition toposting timely announcements and the weekly tech tips, TheFlorida Bar’s current Facebook page—which now has almost1,800 likes—will include a daily summary of news articlesfrom around the state, section/division and voluntary Barinformation and court system, law school and national news.All Facebook posts will be tweeted. Communications alsoreported that a best practices manual for effective electroniccommunication is being developed to address e-etiquette issues.The Standing Committee on Professionalism is beingasked to review all current professionalism guidelines andto amend them as necessary to include electronic communications.The 2014-2015 budget was approved with no fee increasefor the 13th year in a row. Fees for active members willremain at $265, and fees for inactive members will stay at$175. Membership fees represent approximately 65 percentof the total revenues and continue to increase approximately2 percent per year reflecting the increase in the number ofmembers. Operating expenses are budgeted for approximately$41.7 million. The regulation of the practice of lawaccounts for 43 percent of expenses and administrative expensescontinue to be under 10 percent. The budget, whichnow goes to the Supreme Court for approval, will be publishedin the April 15 issue of The Florida Bar News.The board voted to oppose a petition by Bar membersStay connected with theOut-of-State DivisionFacebook:https://www.facebook.com/TheFloridaBarOutOfStateDivisionTwitter:https://twitter.com/FLBarOOSDflabaroutofstaters.org 20 State-to-State — Summer 2014

BOG update, continuedasking the Supreme Court to amend Bar rules to allow forannual membership fees to be increased by up to $100 tofund legal aid for the poor to ameliorate the current fundingcrisis. Instead, the board committed to finding alternativeand more cost effective ways of delivering legal services to theunder-served. President Eugene Pettis said the effort will bebroad-based, involving many interests including the courts,the Bar, the Florida Bar Foundation, court clerks who workwith pro se litigants, the business community, legislators andothers. Bar rules required that the petition be filed with theboard before it is submitted to the court.Special Appointments Schedule: Please see the specialappointments schedule on the website for more information,terms and the application for the following appointmentsto be made at the May 23 meeting. The deadline is April11 to apply for: two lawyers to the ABA House of Delegates(includes under 35 delegates), five lawyers for the FloridaLegal Services, Inc.’s board, three lawyers for Florida LawyersAssistance Inc.’s board, one lawyer to the Medical MalpracticeJoint Underwriting Association and one lawyer to theSupreme Court’s Judicial Ethics Advisory Committee.If you have questions or concerns, contact your Board ofGovernors representative(s): Brian Burgoon, burgoon@burgoonlaw.com;Ian Comisky, icomisky@blankrome.com; EricMeeks, emeeks@meekslawfirm.com; and Richard Tanner,rt7@dbksmn.com.Join theOOSD now!Not a member of the Out-of-State Division? Joinnow!Membership in the division is just $30 and providesa number of valuable benefits to out-of-stateattorneys, including discounts on CLE registration,a free annual ethics CLE and opportunities tonetwork with other Florida lawyers. Join now! Invitea colleague!(For your convenience, an application is on page 25.)For more information, please contact:Mindi Wells, ChairMembership & Long Range Planning Committeemindi.wells@sc.ohio.govWillie Mae Shepherd, Program Administratorwshep@flabar.orgThe Florida Bar and LegalSpan:Bringing online CLE to attorneysSince August 2000, The Florida Barhas been offering quality CLE programsas online, on-demand seminars through apartnership with LegalSpan. The popularityof this type of delivery method has beengrowing exponentially ever since.With increasingly hectic schedules andthe rising cost of travel, attorneys are turningto the Internet to meet their educationalneeds. Online CLE programs offer the flexibilityof viewing programs at your ownpace, anytime, anywhere.Whether a first-time or net-savvy user,Florida attorneys are finding that online CLEprograms are time saving and easy to use:“I am very pleased to be able to havethese seminars made available to membersof The Florida Bar. With the formatyou have provided, I feel that I am at theseminar, and I have the materials whichI can download and save for future reference.Thanks for a great product wellpresented and technically friendly!”—Andrew, Live Oak“Excellent resource. A very convenientway to engage in continuing educationthat has high-quality speakers andcontent.”—Bruce, Miami Beach“This is the greatest thing ever invented.I can now complete my CLE requirementsat home. Everything was so easy.Thank you.”—Sheila, Largo“Terrific site and material. It makes itmuch easier to get CLE credit, andmakes the materials much more usefulsince they can be viewed multipletimes.”—Thomas, Brandon“I found this online seminar to be convenient,understandable and user-friendly.I will use this method more in the future.Thank you for this informational andconvenient seminar.”—Gerald, West Palm BeachWith the explosion of MP3 players andiPods in the market, LegalSpan developedthe technology to enable The Florida Barto introduce downloadable audio versionsof its CLE programs. Since its inception inMarch 2006, the downloadable versionsof The Florida Bar’s CLE programs havebecome as popular a method of obtainingeducation as online CLE. “We want to fostergreater collaboration among members anda more vibrant educational dialogue. Attorneyslearn best at their own pace, in theirown way, in a comfortable environment. Ouronline options give members educationalcontent when and where they want it,” saysPrograms Division Director Terry Hill.The Florida Bar’s catalog of online anddownloadable programs is robust, offeringmore than 200 programs, covering allpractice areas. Attorneys are able to enjoytime and money savings, without sacrificingcontent, by participating in these types ofprograms. The complete catalog of FloridaBar CLE courses can be viewed at www.floridabar.org/cle by accessing the Legal-Span link under Online Courses.flabaroutofstaters.org 21 State-to-State — Summer 2014

EDITOR’S CORNERYour Out-of-State Division wants tohelp grow your practiceWe hope you continue to enjoy the all-cyber version of State-to-State. You should bereceiving a link to each edition of the newsletter that allows you to view the editiononline in color at your desk or on your mobile device. Of course, you can also chooseto print it.We continue to look for ways to enhance the State-to-State. By doing so, we canbetter serve out-of-state lawyers. Remember, too, that you can feature yourself oryour law firm as well. It should be a win-win for everyone.D. WORKMAN You’ll see in this edition the many programs available to OOSD members. Joiningprovides many benefits. One of my favorites involves the work of this publication tointroduce you to other out-of-state members who share a desire to develop their respective practices.We’re not shy—we want to help you develop business. So, please get involved!Your publication continues to grow. And we’d like even more! You’ll see throughout the State-to-Stateour requests for contributing authors. Our content continues to increase because of you. We featureour contributing authors prominently and include the information you’d like others to read aboutyour practice. We have two goals here: to present your ideas to a broad audience and to introduce thereaders to you. We want to help your practice.So, send us your articles and we’ll get you published as quickly and as often as we can. And by allmeans, please let us know how we can serve you better. Please feel free to contact me via email atdworkman@bakerlaw.com or by telephone at 202/861-1602. We also look forward to seeing you at oneof the local receptions.The Out-of-State Division is here to serve you!—Don Workman, EditorFLORIDA...wasdiscoveredby anout-of-stater.S t a t e - t o - S t a t eTHE PUBLICATION OF THE FLORIDA BAR OUT-OF-STATE DIVISIONDonald A. Workman, Washington, D.C. ................................................................. PresidentTimothy P. Chinaris, Montgomery, Ala........................................................ President-ElectChristopher C. Marquardt, Atlanta, Ga. ...............................................................TreasurerJohn C. Voorn, Palos Heights, Ill............................................................................ SecretaryWard P. Griffin, Washington, D.C. ..............................................Immediate Past PresidentWillie Mae Shepherd, Tallahassee, Fla........................................... Program AdministratorMindi Wells, Columbus, Ohio........................................... Information & Technology ChairDonald A. Workman, Washington, D.C. .......................................................................EditorMatthew L. Kahl, Sandy Springs, Ga. .......................................................Associate EditorSusan L. Trainor, Tallahassee, Fla......................................................................Staff EditorClay Shaw, Tallahassee, Fla. .......................................................................................LayoutState-to-State is devoted to Florida and multi-jurisdictional legal matters. It is editoriallyreviewed and peer reviewed for matters concerning relevancy, content, accuracy and style.State-to-State is sent electronically to more than 13,000 legal practitioners throughoutthe United States.Statements or expressions of opinion or comments appearing herein are those of thecontributors and not of The Florida Bar or the division.The deadline for the FALL 2014 issue is JULY 11, 2014. Articles should be of interestto legal practitioners with multijurisdictional practices. Please submit articles in a Wordformat via email to Don Workman, dworkman@bakerlaw.com. Please include a briefbiography with contact information and a photograph of the author.Author! Author!The Out-of-State Division offers its membershipa valuable forum for the exchangeof information on legal issues affecting ourinterstate practices. To be truly effective,it is essential for a large cross section ofour members to contribute articles, newsand announcements to this newsletter.For those of you who would like to seeyour work in print, the rules for publicationare simple: The article should be related toa subject of general interest to legal practitionerswith multijurisdictional practices.Articles focused on your home state areless appealing than issues impacting anumber of jurisdictions.Please send documents in MS Wordformat via email to Don Workman,dworkman@bakerlaw.com.Please help your colleagues to get toknow you by including a brief biographywith contact information, and include ahead and shoulders photograph. Yourphoto and bio will be kept on file and needonly be submitted once.State-to-State 22 Summer 2014

The Out-of-State Division appreciates the articlessubmitted for this edition by our contributing authors.They can serve as a resource to fellow divisionmembers who might have a question regarding theseauthors’ areas of expertise or if a referral is needed.Michael F. Amoia is senior vice president of advancedsales and life product management for Crump LifeInsurance Services. He has over 19 years of experiencewithin the financial planning and life insuranceindustry. He received his B.S. in economics from GeorgeMason University. He graduated cum laude from theUniversity of Baltimore School of Law and recentlyreceived his LL.M. in taxation and a certificate in estateplanning from Georgetown University Law Center. He isadmitted in Maryland. He can be reached at 301/272-9196 or michael.amoia@crump.com.Alvin F. Benton, an associate attorney in the Dallas officeof Holland & Knight LLP, is a part of the firm’s creditors’rights practice group. His practice consists of bankruptcy,commercial and general business litigation. He hasrepresented creditors in a variety of commercial settings,including lenders, creditors and lessors in sophisticatedChapter 11 reorganizations, Chapter 13 cases and Chapter7 liquidations. In addition, he has represented creditors inreceiverships; debt restructuring; commercial, residentialand timeshare foreclosures; and fraudulent conveyanceclaims as well as assisted in breach of contract actionsand employment litigation matters. He can be reached at214/964-9500 or alvin.benton@hklaw.com.H. Brendan Burke is a commander in the UnitedStates Navy Judge Advocate General’s Corps. He recentlycompleted an assignment as assistant fleet judge advocate,U.S. Fleet Forces Command, in Norfolk, Va. He will soonreport as officer in charge, Region Legal Service OfficeMid-Atlantic Detachment, in Groton, Conn. He receivedhis bachelor’s degree in journalism from the Universityof Missouri, his J.D. cum laude from Stetson UniversityCollege of Law and his LL.M. in energy and environmentallaw from The George Washington University. He can bereached at h.brendan.burke@gmail.com.Catherine Peek McEwen is a U.S. bankruptcy judgefor the Middle District of Florida, Tampa Division, andis the vice-chair of the 13th Judicial Circuit (Florida) ProBono Committee. One of Judge McEwen’s mantras is that“judges admire pro bono volunteers.”Let’sGROW ourmembership!Contributing authorsJon B. Mendelsohn is co-founder and CEO of AsharGroup LLC, a nationally licensed firm specializing inthe institutional secondary and tertiary markets. Hehas worked tirelessly to collaborate with members ofthe insurance and financial services, legal and trustcommunities. He obtained years of hands-on experiencein all facets of the secondary market and valuationprocess by working closely with estate and businessplanning firms. He earned two bachelor’s and a master’sdegree from the University of Florida. He can be reachedat 321/441-1113 or jon@ashargroup.com.Kimra Major-Morris is the owner of Major-Morris LawLLC in Apopka, Fla., and practices as an entertainment,copyright and trademark attorney. She is the CLE chairfor The Florida Bar’s Intellectual Property Committee andis the author of “Avoiding Copyright Infringement in YourChurch” (self-published), “The Quest for IP Protections ina Digital Age” (Editor’s Choice award winner, Winter 2012International Law Quarterly) and “Fixed Rights, PracticalApplications: Why Register Your Client’s Copyright?” (withJosh Brown, Esq., in The Briefs, July 2012). She can bereached at 407/230-0540 or attorneykimra@gmail.com.Robert C. Slane has over 30 years of experience in thehigh-net-worth life insurance market. He is president ofThe Wealth Transfer Group Inc., a fee-based planningorganization located in Winter Park, Fla., dedicated toserving the estate and wealth transfer planning needsof an elite clientele with estates exceeding $10 million.He received his Chartered Life Underwriters (CLU)designation from the American College and his AccreditedEstate Planner (AEP) designation from the NationalAssociation of Estate Planners and Councils. He can bereached at 407/339-5787 or rslane@wealth-transfer.com.Donald A. Workman, OOSD president and State-to-State editor, is a partner in the Business Group andhead of BakerHostetler’s bankruptcy and creditors’rights practice in the Washington, D.C., office. Hispractice areas include business bankruptcy, creditors’rights, debtor reorganizations, general insolvency,stockbroker liquidations and commercial litigation.He can be reached at 202/861-1602 or dworkman@bakerlaw.com.Become a contributor! See submission information onpage 22.We can be BIGGER & better!If you would be willing to speak with a new law schoolgraduate who is looking for employment in your area,please email your contact information to DivisionAdministrator Willie Mae Shepherd at wshep@flabar.org.flabaroutofstaters.org 23 State-to-State — Summer 2014

OUT-OF-STATE DIVISION EXECUTIVE COUNCILDonald A. Workman, PresidentBaker Hostetler LLP1050 Connecticut Avenue N.W.Ste. 1100Washington, DC 20036-5318202/861-1500Fax: 202/861-1783dworkman@bakerlaw.comTimothy P. Chinaris, President-ElectP.O. Box 210265Montgomery, AL 36121-0265334/386-7214Fax: 334/386-7223tchinaris@gmail.comChristopher C. Marquardt, TreasurerAlston and Bird LLP1201 W. Peachtree Street N.W.Atlanta, GA 30309404/881-7827Fax: 404/253-8741chris.marquardt@alston.comJohn C. Voorn, Secretary6231 W. 129th PlacePalos Heights, IL 60463-2336708/403-5050Fax: 708/403-9667jcv@hdoml.comScott E. AtwoodStout Atwood LLC2248 1st StreetFort Myers, FL 33901-2960239/898-4130Fax: 770/349-8210scott@stoutatwood.comD. Pearson Beardsley1827 Powers Ferry Road S.E.Bldg. 6, Ste. 302Atlanta, GA 30339404/558-7646pbeardsley@dpblegal.comW. Bard BrockmanBryan Cave Powell Goldstein LLP1201 W. Peachtree Street N.W.Floor 14Atlanta, GA 30309-3471404/572-6600Fax: 404/572-6999bard.brockman@bryancave.comBrian D. BurgoonBurgoon Law Firm LLC659 Auburn Avenue N.E., Ste. 147Atlanta, GA 30312-1983404/260-5147Fax: 866/805-5997burgoon@burgoonlaw.comIan M. ComiskyBlank Rome LLPOne Logan Square130 N. 18th StreetPhiladelphia, PA 19103-6933215/569-5646Fax: 215/832-5646icomisky@blankrome.comMatthew L. KahlMorris Hardwick Schneider1303 Hightower Trail, Ste. 315Sandy Springs, GA 30350678/298-2117Fax: 678/946-0276mkahl@closingsource.netLawrence H. KuninMorris Manning & Martin3343 Peachtree Road N.E.Atlanta, GA 30326-1022404/233-7000Fax: 404/365-9532lkunin@mmmlaw.comWilliam A. Lee IIIO’Donnell, Lee, McCowan andPhillips LLCP.O. Box 559Waterville, ME 04903-0559207/872-0112Fax: 207/872-0002walee@olmplaw.comEric L. MeeksMeeks Law Firm Inc.P.O. Box 8098Cincinnati, OH 45208-0098513/826-0229Fax: 513/826-0231emeeks@meekslawfirm.comE. Duffy MyrtetusTwo James Center, Ste. 14001021 E. Cary StreetRichmond, VA 23219-4058804/771-5750Fax: 804/771-5777edmyrtetus@kaufcan.comRichard A. Tanner6 Pompton Ave.Cedar Grove, NJ 07009-2042973/632-0736rt7@dbksmn.comLeslie UtigerAkerman Senterfitt2001 Ross Avenue, Ste. 2550Dallas, TX 75201-2991214/720-4300leslie.utiger@akerman.comMindi WellsThe Supreme Court of Ohio65 S. Front Street, Floor 7Columbus, OH 43215-4131614/387-9500mindi.wells@sc.ohio.govflabaroutofstaters.org 24 State-to-State — Summer 2014

Membership Application forThe Florida BarOut-of-State DivisionOf the 81,000 members of The Florida Bar, more than 13,000 members reside outside the state ofFlorida.Although the division represents the interests of all lawyers outside the state, active participation in thedivision requires an election on the annual dues statement and, of course, the payment of dues (only$30).Membership in this division will provide a forum for communication and education for theimprovement and development of your practice through:• a reduced fee for division-sponsored continuing legal education programs• a newsletter especially designed for out-of-state practitioners• a ready network for referrals and access to information through regional coordinators• a web page especially designed for out-of-state practitioners• an annual free online ethics CLETo join, make your check payable to The Florida Bar and return your payment in the amount of $30 andthis completed application form to OOS Division, The Florida Bar, 651 E. Jefferson St., Tallahassee, FL32399-2300. Membership will expire June 30. Dues will not be prorated.OS Member Division Dues (Item number – 8161001)OS Affiliate Division Dues (Item number – 8161002)Name:Firm:Office Address:City/State/ZIP:Email:Florida Bar Number:METHOD OF PAYMENT (CHECK ONE)Check Enclosed (payable to The Florida Bar)Credit Card: Mastercard Visa Discover AMEXName on Card:Card Number: Expiration Date: /Signature:To learn more, visit our website at www.flabaroutofstaters.org or contact theprogram administrator at wshep@flabar.org.flabaroutofstaters.org 25 State-to-State — Summer 2014

Share with astudent!THE FLORIDA BAR – OUT-OF-STATE DIVISIONAPPLICATION FOR STUDENT MEMBERSHIPOf the 81,000 members of The Florida Bar, more than 13,000 members reside and/or practice outsideFlorida. The Out-of-State Division of The Florida Bar represents the interests of all Florida lawyers residingand/or practicing outside the state.The Out-of-State Division seeks to keep its members informed of recent developments that could impacttheir practice as out-of-state Florida attorneys. Further, the division promotes opportunities to network—bothsocially and professionally—with other out-of-state Florida attorneys. Membership in the division providesaccess to the division’s newsletter (State-to-State), the division’s website (www.flabaroutofstaters.org),division-sponsored continuing legal education programs and division meetings.Student membership in the division will:Afford an opportunity to network with out-of-state Florida attorneys who can offer insights on practicinglaw as a Florida attorney outside the state.Allow for communication with Florida lawyers practicing in a variety of locales nationwide.Provide the member with access to the division’s newsletter and website, which are designed especiallyfor out-of-state practitioners, and an opportunity to submit articles for publication.Entitle the member to a reduced fee for division-sponsored continuing legal education programs.To join, send this completed application form to:Out-of-State Division, The Florida Bar, 651 E. Jefferson St., Tallahassee, Florida 32399-2300.(The application form also may be sent by email to OOSD.Student.Member@gmail.com.)Student membership will expire upon admission to The Florida Bar or one year after graduationfrom law school, whichever occurs first. There is no membership fee for students.NAME: ____________________________________________________________________________SCHOOL: __________________________________________________________________________DATE OF GRADUATION (MO./YR.): _____________________________________________________ADDRESS:___________________________________________________________________________________________________________________________________________________________PHONE: ___________________________________________________________________________EMAIL: ____________________________________________________________________________LIST ANY CITIES/STATES IN WHICH YOU HAVE A PARTICULAR INTEREST: _____________________________________________________________________________________________________SIGNATURE:______________________________________________ DATE:_____________________flabaroutofstaters.org 26 State-to-State — Summer 2014

ATTORNEY #ADDRESS:Continuing Legal EducationApplication for Course Attendance CreditThe Florida BarLegal Specialization & Education651 E. Jefferson StreetTallahassee, FL 32399-2300(850)561-5842 (Phone) (850/561-9421 (Fax)NAME:CITY: STATE: ZIP:PHONE:ACTIVITY TITLE:SPONSOR NAME:DATE AND LOCATION OF COURSE:FAX:PLEASE ATTACH A COURSE BROCHURE AND/OR OUTLINE WHICH:(A) FULLY DESCRIBES THE COURSE CONTENT AND LEVEL OF PRESENTATION(B) INDICATES THE TIME DEVOTED TO EACH TOPIC COVERED WITHIN THE PROGRAM(C) INDENTIFIES THE INSTRUCTORSCERTIFICATION CREDITIndicate if credit is to be assessed for Board Certification.CERTIFICATION AREA(S):TOTAL MINUTES ON INSTRUCTION: (EXCLUDING BREAKS, MEALS AND INTRODUCTIONS AND BASED ON A 50MINUTE HOUR)TOTAL CREDIT (TOTAL MINUTES DIVIDED BY 50 = CREDIT HOURS)50If requesting Ethics, Professionalism, Substance Abuse, and/ Mental Illness Awareness Credit, please checkappropriate box below.EthicsProfessionalismSubstance AbuseMental Illness AwarenessNOTE: If you have completed the minimum number of required CLER hours, and are not seeking Certification credit, please do not submitfurther courses for evaluation. There is no carry over of hours in Florida from one reporting period to the next.You may submit this application to clemail@flabar.org with the proper documentation.Materials submitted for CLE credit review will be discarded once the credit has been determined.Should you wish to have your materials returned, please enclose a self-addressed stamped envelope.flabaroutofstaters.org 27 State-to-State — Summer 2014

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