Fifth Amendment

News & Analysis as of

The New Persuader Activity Reporting Requirements—A Significant Development

In accordance with the U.S. Department of Labor’s recent public announcement regarding the implementation of its new “persuader activity” rule, all engagements entered into prior to July 1, 2016—including long-term or...more

Five Lawsuits Filed Against DOL’s Fiduciary Rule (so far)

As we previously discussed in our May 19, 2016 SW Benefits Update, the Department of Labor (“DOL”) recently issued final regulations on fiduciary conflicts of interest in retirement programs. Since 2010 when the DOL first...more

Lawsuits Filed Challenging The USDOL’s Final Fiduciary Rules

On April 6, 2015, the U.S. Department of Labor released its Final Rule addressing when a person providing services to an employee benefit plan or individual retirement account (IRA) is considered to be providing investment...more

The U.S. Chamber And the Yates Memo On DOJ Cooperation

Earlier this month Deputy AG Sally Yates defended her controversial memorandum on cooperation in remarks made before the New York City Bar Association White Collar Conference. The memo to which her name is attached redefined...more

Safe or Good? We All Have Choices to Make

I planned to write about the inspired, better-than-sliced-bread security option of using fingerprint authentication to protect our mobile devices. That imploded. In 2014, and earlier this year, courts in Virginia and...more

Dropping the Dime: Risks of Giving Evidence to Canadian Securities Regulators

Canadian securities regulators often cooperate with their counterparts abroad due to the increasingly global nature of securities regulation. Canadian securities regulators have entered into several agreements or memoranda of...more

Criminal Defense Attorney and the 50th Anniversary of Miranda

As a criminal defense attorney it is notable to me that June 13, 2016, marks the 50th anniversary of one of the U.S. Supreme Court’s most famous decisions. Thanks to the Miranda opinion, anyone who has seen a TV crime drama...more

Oakley to Condemn Century-Old Building for Street Widening Project

As cities become more dense and urbanized, it is common for infrastructure to get outdated or insufficient to handle increased demand. We see this with roads, highways, schools, and even utilities. When new infrastructure...more

Taxpayer Entitled to Section 1033 Gain Exclusion Despite Holding Only a Beneficial Ownership Interest in Condemned Property

In PLR 201609003, the IRS determined that a taxpayer was entitled to exclude gain attributable to the forced transfer of the taxpayer’s ownership of public use facilities, even though the taxpayer did not hold legal title to...more

In re Tam Redux Redux: Redskins Petition for Certiorari, Trying to Skip 4th Cir.

In response to the United States Patent and Trademark Office’s (“USPTO”) petition for writ of certiorari in to the U.S. Supreme Court In re Tam (“THE SLANTS” case), the owners of the Washington Redskins filed their own...more

To Plead or Not to Plead (the Fifth Amendment) in Civil Litigation — That is the Question

Criminal law and procedure can make even the most seasoned bankruptcy and restructuring lawyers uneasy. However, the Fifth Amendment privilege, in particular, does arise in civil matters from time to time. And there can be...more

Testing The 5th: Compelled Testimony From Foreign Regulators

The circumstances of the prosecution of Anthony Allen and Anthony Conti exemplify how cross-border cooperation and parallel investigations can give rise to novel issues in a subsequent criminal trial. Allen and Conti were...more

U.S. Supreme Court to Decide "Critical Question" in Eminent Domain

This summer, the U.S. Supreme Court will decide a critical question that will determine whether some landowners will receive compensation from regulations that restrict the uses of their land. The case, Murr v. Wisconsin, may...more

Not So Fast! Business Groups Sue to Block DOL "Persuader" Rule

On March 30, 2016, one week after the U.S. Department of Labor (DOL) published its final “Persuader” Rule, the National Association of Manufacturers and other national, state and local business groups sued the DOL to block...more

First Lawsuit Filed Challenging the DOL’s Final Persuader Rule

Yesterday, a group of plaintiffs (including a trade association, the Arkansas Chamber of Commerce, the Coalition for a Democratic Workplace, the National Association of Manufacturers, and a law firm) filed suit in the United...more

An Important Check On The Abuse Of Government Authority

As citizens of a nation founded on the rule of law, we depend upon law enforcement and prosecutors to protect us from harm and from those who infringe our liberty. In exchange for this protection, we permit these public...more

Eighth Circuit Rejects Hospice’s Fifth Amendment Plea

But not the Fifth Amendment plea you’re thinking of. It was the takings clause, not the self-incrimination clause, that Southeast Arkansas Hospice (SAH) was pleading. And the Eighth Circuit wasn’t buying it....more

The Law Behind the Apple vs. FBI iPhone Unlocking Debate

By now, you have probably read about how the FBI is asking Apple to create software that would help the FBI unlock the iPhone of one of the deceased San Bernadino attackers. You have probably heard the talking heads scream...more

Regulatory Takings Cases and the Relevant Parcel: Murr v. Wisconsin

This summer, in Murr v. Wisconsin, the United States Supreme Court will make an important decision on property rights and regulatory takings under the Takings Clause of the Fifth Amendment of the U.S. Constitution. At issue...more

Property Owners and Developers Take a Hit from Supreme Court

The U.S. Supreme Court opened the door for a new form of exaction from property owners and real estate developers by refusing to hear an appeal from a decision by the California Supreme Court upholding San Jose’s inclusionary...more

For Whom the Bell Tolls - Only a Complete Litigation Stay Extends the Five Year Rule For Bringing a Case to Trial

On February 25, 2016 the Supreme Court of California in Gaines v. Fidelity National Title Insurance Company, et al. (Court of Appeal B244961, Superior Court Case BC361768), affirmed the lower courts’ holdings that a partial...more

Justice Scalia’s Enduring CEQA and Land Use Law Legacy

With the February 13 passing of U.S. Supreme Court Associate Justice Antonin Scalia, American jurisprudence lost an intellectual giant. But Justice Scalia will not be forgotten; the legacy of his life’s work lives on. While...more

Will The Supreme Court Loosen The Reins On Regulatory Takings Claims?

It is an understatement to say that pursuing a claim against the government for a Fifth Amendment regulatory taking is difficult. The United States Supreme Court has described such claims as presenting “an especially steep...more

Your daily dose of financial news The Brief – 1.26.16

Quick recap: another Monday, another rough start to a trading week in what’s turned into an ugly pattern for the year – WSJ... Which, coupled with more pessimism about the Chinese economy, helped drive stocks down in...more

Possible Chicanery by DTE On Milford Bypass Loop Pipeline?

Has DTE withheld distribution of complete easements, including the exhibit containing the legal description of the encumbered property, in an attempt to hide the true impacts of the easements from homeowners? Last night, I...more

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