Stinson Morrison Hecker LLP http://www.stinson.com SMH logo http://www.stinson.com/images/logo.gif http://www.stinson.com 5/12/2008 <![CDATA[St. Louis Offices Combine into One Location]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=752 http://www.stinson.com/legalpublications/smhlupage.asp?key=752
The consolidation into one space was the final step towards integration after the combination of Stinson Morrison Hecker LLP and Blumenfeld, Kaplan & Sandweiss, PC in July of 2007.  The 49,000 square feet at 168 North Meramec meet the current space requirements of the St. Louis office of SMH and allow the firm to realize the synergies of the combination.  The firm continues to search for an office location with 60,000+ square feet to meet the firm’s long term needs and allow for future growth in the St. Louis area.
 
About Stinson Morrison Hecker LLP Stinson Morrison Hecker LLP is one of the country’s largest law firms with more than 360 attorneys representing clients nationwide in a full range of corporate, transaction and litigation matters. With attorneys in nine offices throughout five states, the firm has experience in more than 45 industry-focused areas. Office locations include Kansas City, St. Louis and Jefferson City, Mo.; Overland Park and Wichita, Kan.; Omaha, Neb.; Phoenix, Ariz.; and Washington, D.C.
]]> Mon, 12 May 2008 6:00:00 GMT <![CDATA[Stinson Advises Clients in CMBS Securitizations Totaling More Than $3.8 Billion]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=751 http://www.stinson.com/legalpublications/smhlupage.asp?key=751
Stinson attorneys involved in these transactions included Kenda Tomes, Ken Starkey, Russ Brien, Greg Nickell, Lisa Westergaard, Scott Smalley, Aisha Reynolds, Jose Barbeito, Katie True-Awtry, Selena Nelson, and Tyler Milligan.

About Stinson Morrison Hecker LLP Stinson Morrison Hecker LLP is one of the country’s largest law firms with more than 360 attorneys representing clients nationwide in a full range of corporate, transaction and litigation matters. With attorneys in nine offices throughout five states, the firm has experience in more than 45 industry-focused areas. Office locations include Kansas City, St. Louis and Jefferson City, Mo.; Overland Park and Wichita, Kan.; Omaha, Neb.; Phoenix, Ariz.; and Washington, D.C. ]]> Fri, 9 May 2008 6:00:00 GMT <![CDATA[Stephen J. Cosentino Named to Ingram’s Forty Under 40]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=747 http://www.stinson.com/legalpublications/smhlupage.asp?key=747 Stephen J. Cosentino, a partner at Stinson Morrison Hecker LLP was named to Ingram’s Kansas City Business Magazine’s 2008 class of  “40 Under Forty.” This special section honors Kansas City’s brightest and most dedicated young leaders, who have earned the admiration and gratitude of their colleagues, associates and friends.  In addition to achieving professional success, honorees are active in and committed to giving back to the Kansas City region.

Primarily focusing on technology related transactions, Cosentino has an emphasis on software licensing, application service provider transactions, outsourcing, online privacy and Internet related laws. Additionally, as an associate member of the firm’s Corporate Finance Division, Cosentino has extensive experience in mergers and acquisitions, taking an active role on a number of corporate transactions and due diligence investigations.
Giving back to the Kansas City community is important to Cosentino, as he serves on the Law Foundation Board of Trustees for the University of Missouri-Kansas City School of Law, the Steering Committee for the Bob Downs Scholarship Fund benefiting students at the University of Missouri-Kansas City, and the board of the Community Resource Network. He also recently participated in the Greater Kansas City Chamber of Commerce Centurions Leadership Program and chairs the Kansas City Metropolitan Bar Association Publications Advisory Board.  .

Cosentino received his bachelor’s degree from the University of Missouri-Columbia cum laude and with honors, and his law degree from the University of Missouri-Kansas City.  

About Stinson Morrison Hecker LLP
Stinson Morrison Hecker LLP is one of the country’s largest law firms with more than 360 attorneys representing clients nationwide in a full range of corporate, transaction and litigation matters. With attorneys in nine offices throughout five states, the firm has experience in more than 45 industry-focused areas. Office locations include Kansas City, St. Louis and Jefferson City, Mo.; Overland Park and Wichita, Kan.; Omaha, Neb.; Phoenix, Ariz.; and Washington, D.C. For more information, visit them online at www.stinson.com.

]]> Fri, 2 May 2008 6:00:00 GMT <![CDATA[Thomas J. Lynn Joins Stinson Morrison Hecker LLP]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=745 http://www.stinson.com/legalpublications/smhlupage.asp?key=745 Thomas J. Lynn as a partner to its Kansas City office. Lynn joins the Corporate Finance Division of the firm and will focus his practice on mergers and acquisitions, securities and general business law. He has represented privately- and publicly-held companies in corporate acquisitions, dispositions and mergers, as well as public and private placements of securities.

Lynn earned a juris doctorate from the University of Chicago Law School in 1999 and a bachelor’s degree from the University of Kansas in 1995.

About Stinson Morrison Hecker LLP
Stinson Morrison Hecker LLP is one of the country’s largest law firms with more than 360 attorneys representing clients nationwide in a full range of corporate, transaction and litigation matters. With attorneys in eight offices throughout five states, the firm has experience in more than 45 industry-focused areas. Office locations include Phoenix, Ariz.; Kansas City, St. Louis and Jefferson City, Mo.; Overland Park and Wichita, Kan.; Omaha, Neb.; and Washington, D.C. ]]> Thu, 24 Apr 2008 6:00:00 GMT <![CDATA[Zafft Honored with the Tice Humanitarian Award from Rainbow Village]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=726 http://www.stinson.com/legalpublications/smhlupage.asp?key=726
Previously with the law firm of Blumenfeld, Kaplan & Sandweiss, Jerry is of counsel with SMH.  He concentrates his practice on estate planning, corporate, tax, and mergers and acquisitions.  He has considerable experience in estate planning for families with a member with a disability. This experience led to the creation of the Midwest Special Needs Trust (formerly Missouri Family Trust), of which Jerry is the prime author. The Midwest Special Needs Trust is a nationally recognized innovative approach which permits a family to provide for their loved one’s benefit, without jeopardizing his or her eligibility for government entitlement funding. It provides services to hundreds of families in Missouri and other Midwestern states.

Jerry is also an active volunteer in the community serving on the boards of directors of the Midwest Special Needs Trust, Woodhaven, and Project, Inc. He has also served on the Missouri State Health Commission.
 
About Stinson Morrison Hecker LLP
Stinson Morrison Hecker LLP is one of the country’s largest law firms with more than 360 attorneys representing clients nationwide in a full range of corporate, transaction and litigation matters. With attorneys in nine offices throughout five states, the firm has experience in more than 45 industry-focused areas. Office locations include Kansas City, St. Louis and Jefferson City, Mo.; Overland Park and Wichita, Kan.; Omaha, Neb.; Phoenix, Ariz.; and Washington, D.C.
]]> Fri, 11 Apr 2008 6:00:00 GMT <![CDATA[Stinson Morrison Hecker and Premier Sports & Entertainment's Gary Uberstine Join Forces to Create Powerhouse Coach Representation Agency]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=725 http://www.stinson.com/legalpublications/smhlupage.asp?key=725 Premier Stinson Sports. Collectively the firms represent more than 75 professional and collegiate coaches, including USC head football coach Pete Carroll, University of North Carolina head basketball coach Roy Williams and Oakland Raiders head coach Lane Kiffin.

The partnership between Uberstine, CEO of Premier Sports & Entertainment, a full service sports agency and talent management firm, and SMH, a full-service law firm, is focused solely on the representation of elite-level college and professional coaches. PSS will have offices across the country including Santa Monica, California, and Kansas City and St. Louis, Missouri.

“Through the combination of these two firms, we will greatly strengthen the resources, expertise, and comprehensive suite of services available to our respective clients,” said Premier CEO Gary Uberstine. SMH Sports Law Chairman Bob Lattinville added, “we could not be more excited about the opportunity to join forces with Gary in the focused representation of elite-level coaches. It is a perfect alignment in terms of approach and professionalism and the combination measurably enhances our value to coaching clients in regards to cutting-edge marketing and public relations strategy.”

Premier Sports & Entertainment was founded by Uberstine and represents a select and elite client list, which includes coaches such as Carroll, Kiffin, and USC assistant head coach Steve Sarkisian. Uberstine has been a certified contract advisor for over 20 years and has negotiated a number of record-breaking coaching contracts. Premier also represents NFL football players, sports broadcasters, and health and fitness expert Laila Ali.

SMH’s sports practice encompasses the representation of college football coaches, including 2006 Broyles Award winner Bud Foster of Virginia Tech; women's basketball coaches including Cal's Joanne Boyle, Duke's Joanne McCallie, Kansas’ Bonnie Henrickson and the WNBA's Brian Agler of the Seattle Storm; college baseball coaches including Arizona State's Pat Murphy and Michigan's Rich Maloney; and sports broadcasters, Hall of Famers Dan Dierdorf and Ozzie Smith. The firm also represents institutional sports clients, including the Rawlings Sporting Goods Company, the Kansas City Royals and the Womens’ Basketball Coaches Association as well as a host of NFL players. For more than 20 years, SMH attorney, and former Dean of the University of Kansas School of Law, Mike Davis has represented North Carolina basketball coach Roy Williams in contract matters.

SMH also has significant expertise in NCAA rules compliance and infractions matters. SMH partner Scott Tompsett has been involved in over thirty-five major NCAA infractions investigations since 1991. He has successfully defended coaches against allegations of major violations, including unethical conduct allegations, and was involved in the first successful appeal of a penalty banning post-season competition. There are few individuals with Tompsett's experience in representing coaches in NCAA infractions matters. SMH partner Phil McKnight has considerable experience with tax laws relating to nonqualified deferred compensation arrangements, qualified retirement plans and executive-level employment agreements, and regularly works with Lattinville on developing the optimal strategies for the firm’s coaching clients to increase their net worth.

About Premier Sports & Entertainment. Premier Sports Management, located in Santa Monica, is a leading full-service sports management firm with over 20 years of experience. As one of the industry's most experienced and respected firms, Premier has negotiated numerous landmark NFL contracts. For more information, visit them online at www.premiersport.com.

About Stinson Morrison Hecker LLP. Stinson Morrison Hecker LLP is one of the country’s largest law firms with more than 360 attorneys representing clients nationwide in a full range of corporate, transaction and litigation matters. With attorneys in nine offices throughout five states, the firm has experience in more than 45 industry-focused areas. Office locations include Kansas City, St. Louis and Jefferson City, Mo.; Overland Park and Wichita, Kan.; Omaha, Neb.; Phoenix, Ariz.; and Washington, D.C. For more information, visit them online at www.stinson.com. ]]> Tue, 8 Apr 2008 6:00:00 GMT <![CDATA[Stinson Morrison Hecker LLP Expands Construction Law Group]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=716 http://www.stinson.com/legalpublications/smhlupage.asp?key=716 Susan McGreevy, Michael Callahan and Heath Hawk to its Kansas City office. McGreevy, Callahan and Hawk previously were part of the Construction Practice Group at Husch Blackwell Sanders LLP. Effective April 1, McGreevy and Callahan joined the firm’s Construction Law Group as partners, and Hawk as an associate.

These new additions expand the firm’s Construction Law Group by bringing expertise in both public and private projects, including advising construction companies, general contractors, subcontractors, suppliers, design professionals, insurers, sureties, lenders and owners in everyday business ventures, as well as construction litigation.

“Stinson Morrison Hecker has a growing reputation of providing clients with a high-level of expertise in construction law. With the addition of Susan, Michael and Heath, we greatly strengthen that position and expand our team of seasoned attorneys,” Mark Foster, Kansas City firm managing partner, said.

Susan McGreevy’s practice has focused on the drafting and negotiation of all types of construction agreements, resolution of disputes, strategic and succession planning, and representing sureties in bond claims and litigation. She is listed in the 2003-2004, 2005-2006, 2007 and 2008 editions of The Best Lawyers in America in the area of Construction Law. In 2007, McGreevy was named among the “Best of the Bar” by the Kansas City Business Journal for the fifth time. McGreevy has written extensively on most areas of construction law, with articles appearing in the American Bar Association’s Probate and Property Magazine, Financial Management and Accounting for the Construction Industry, MoBar Deskbook of Construction Law, 2003 ed., and the ENR magazine Practical Real Estate Lawyer (ALI/ABA), among many others. Additionally, McGreevy is a frequent keynote and seminar speaker to local, regional and national groups on construction law. She received her bachelor’s degree from the University of Michigan with honors and her law degree from George Washington University Law School with honors.

Mike Callahan has a practice focused in construction law and construction litigation and arbitration. He has published articles in various legal and industry publications, including Kansas Construction Law, second edition, 2006, and is a frequent seminar speaker to local and regional groups on construction law. Callahan received his bachelor’s degree from the United States Military Academy at West Point and his law degree from Washburn University School of Law (magna cum laude). In addition to his private practice, Callahan is a Judge Advocate with the Air National Guard.

Heath Hawk joins the firm with a practice focused in the areas of business and commercial litigation with an emphasis in the construction industry. He represents contractors and other clients on a broad range of contract, insurance and litigation issues and disputes. Hawk received his bachelor’s degree from the United States Military Academy and he received his law degree from the University of Kansas.

About Stinson Morrison Hecker LLP Stinson Morrison Hecker LLP is one of the country’s largest law firms with more than 360 attorneys representing clients nationwide in a full range of corporate, transaction and litigation matters. With attorneys in nine offices throughout five states, the firm has experience in more than 45 industry-focused areas. Office locations include Kansas City, St. Louis and Jefferson City, Mo.; Overland Park and Wichita, Kan.; Omaha, Neb.; Phoenix, Ariz.; and Washington, D.C. For more information, visit them online at www.stinson.com. ]]> Thu, 3 Apr 2008 6:00:00 GMT <![CDATA[Infocast's FERC Compliance Summit 2008]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=749 http://www.stinson.com/legalpublications/smhlupage.asp?key=749
Harvey Reiter, Stinson Morrison Hecker Partner in the firm's Energy Group, will serve on a panel to discuss "Mitigating & Aggravating Factors in Regulatory Actions." These presentations will explore discretionary factors that may affect the severity of enforcement actions and penalties.

Topics include:
  • What mitigating and aggravating factors can affect regulatory actions?

  • What are the potential impacts?

Program Details
May 19-21, 2008
Washington, DC

This event is open to the public. For further information regarding the program and registration, please visit Infocast. ]]> Thu, 8 May 2008 6:00:00 GMT <![CDATA[Business Law Update (St. Louis) - May 21, 2008]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=748 http://www.stinson.com/legalpublications/smhlupage.asp?key=748 seminar will include topics that address the latest legal developments and challenges impacting businesses. Following the seminar, you are invited to attend a cocktail reception to network with other guests, the speakers and SMH attorneys. We hope to see you there.

When
Wednesday, May 21, 2008
2:45 pm Registration
3:00 pm Program
6:00 pm Reception

Where
The Ritz-Carlton
100 Carondelet Plaza
St. Louis, MO 63105
tel: 314.863.0300

Topics
  • Ethics (Larry Joye)

  • Hot Topics in Lending - The Credit Crunch and Other Nasty Surprises (Joe Hipskind)

  • Employment Law Outlook – The Good, the Bad and the Ugly (Laura Kipnis)

  • Immigration – What’s Here and What’s Coming (George Newman)

  • Employee Benefits Update – The Time to Take Action is Now (Troy Kendrick)

  • The 2008 Missouri General Assembly and How it Affects Your Business
    (Tricia Workman and Senator Michael Gibbons, President Pro Tem of Missouri Senate)

  • How to Do Business Internationally (Phil Kaplan)

This program qualifies for 3.0 CLE hours in Missouri including 0.5 hour ethics.

RSVP
Please RSVP to 314.259.4573 or rsvp2.stl@stinson.com by Friday, May 16. ]]> Fri, 25 Apr 2008 6:00:00 GMT <![CDATA[2008 Wichita Business Law Update]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=713 http://www.stinson.com/legalpublications/smhlupage.asp?key=713
When
Friday, May 16th, 2008
1:00 pm Registration
5:30 pm Cocktails and hors d'oeuvres

Where
Homewood Suites by Hilton
1150 Waterfront Parkway
Wichita, Kansas 67206

Click here for an agenda of this seminar.

This program qualifies for 4.5 CLE Hours in Kansas including 2.0 Ethics. Kansas CLE credit is subject to the 5.0 hour in-house limit.

Please click here to RSVP for the seminar. ]]> Mon, 14 Apr 2008 6:00:00 GMT <![CDATA[Construction Law e-Alert: Kansas Court of Appeals Emphasizes Strict Compliance with Mechanic's Lien Requirements]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=746 http://www.stinson.com/legalpublications/smhlupage.asp?key=746 Buchanan v. Overley, 178 P.3d 53, (Kan. App. 2008), the court evaluated the sufficiency of a contractor's lien statement and considered whether the contractor properly verified that the address incorporated by reference in several attached invoices was sufficient to perfect the lien. K.S.A. 60-1102(a) requires that a verified lien statement include "the name and address sufficient for service of process of the claimant." According to the Buchanan Court, the lien was invalid because, while the contractor verified the lien statement, the contractor did not verify that the address in the invoices was sufficient for service of process. As a result, the contractor could not foreclose on the property secured by the lien.

What This Means to You: The Buchanan decision emphasizes the need to strictly follow the statutory requirements when preparing mechanic's liens. While the courts will liberally construe the mechanic's lien law once the lien has attached, strict compliance is required with the procedure prescribed in the statute in order to perfect the mechanic's lien.


For additional information on this alert, contact Heath Hawk at 816.691.3483 or hhawk@stinson.com. ]]> Wed, 30 Apr 2008 6:00:00 GMT <![CDATA[Protect Your Business from Digital Intrusion]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=744 http://www.stinson.com/legalpublications/smhlupage.asp?key=744 As published in the Kansas City Small Business Monthly. Posted with permission.

By John Benson


In 2007, TJX Companies Inc., the parent company of retailer TJ Maxx, began settling lawsuits resulting from a security breach that led to the disclosure of an estimated $94 million customer credit and debit card records. With the increased focus on identity theft, consumers want organizations to be held responsible when their identities are stolen. Currently, the legal requirements of businesses to protect consumer information are unclear. What is clear, however, is that to avoid a claim of negligence in handling of sensitive information, businesses must take steps to protect consumer data.

Preventing Intrusions and Data Loss
Retention of sensitive consumer and employee information, such as birth dates, Social Security numbers and account numbers, should be kept to a minimum and the data closely guarded when it is retained. Encrypt hard drives that contain this information and consider keeping this information on desktop PCs, which are less likely to be stolen than laptops. Any backups of these drives also should be encrypted and stored in a secure location.

Map the location where information is stored so any vulnerable data can be identified and secured. Also, include the location of removable storage such as burnable discs, flash drives and external hard drives. This is also useful in the case of an electronic discovery request as part of litigation. Once the data is mapped, you can take steps to protect your most valuable information.

Make sure employees are aware of the responsibility that comes with the convenience of mobile computing. They should take steps to avoid theft of laptop computers by not leaving computers visible inside automobiles or using storage cases that show the laptop manufacturer's logoa clear indication of what’s inside. Require user logins for computers to prevent thieves from accessing your data and encrypt the data on the hard drive to thwart more skilled attacks.

Wi-Fi Precautions
Public Wi-Fi is insecure and should be treated as a hostile environment where network activity is easily monitored. On a shared Internet connection, a skilled individual can monitor network traffic, capture passwords or attempt to directly break into a system. Wi-Fi can be accessed from a few miles away with proper equipment, so an attacker may not be immediately visible. If employees use public Wi-Fi, make sure to use a strong firewall, work with service providers to secure e-mail communications and consider setting up a VPN (Virtual Private Network) to secure all communications when away from the office.

If you currently use Wi-Fi at your office, seriously consider whether the access is necessary. If you must have wireless networking, take steps to secure the network. Use strong encryption, such as WPA2, which is easier to use and more effective than WEP, which can be broken in less than five minutes. Always change router passwords from their default values.

Protect your office network by placing a firewall between your broadband modem and the rest of your network. Firewalls with advanced features such as a built-in VPN, stateful packet inspection (SPI) and a wireless access point can be purchased for less than $150. Each computer should have a fully patched operating system running up-to-date anti-malware applications, including anti-virus and anti-spyware components.

Incident Response
Using a cleaning tool or recovering data from a backup can resolve malware infections. More serious intrusions may require additional action, such as involving law enforcement. Signs of intrusion may be obvious, such as the too familiar wave of advertisements or your anti-virus software alerting you of an infection. More serious intrusions may reveal themselves through an increased amount of identity theft reports from employees or customers alerting you that they have received spam from your company.

If you believe that you have suffered a serious breach of security, contact a certified information security professional to assess the situation. If sensitive information has been compromised, contact those who may be affected so they can protect themselves by closely monitoring their accounts and credit reports.

The next few years will bring clarity to the laws surrounding information security breaches. In the meantime, small businesses should make sure they take reasonable steps to protect their data. By limiting the amount of sensitive personal information that your business retains, encrypting the information and limiting access to it, the risk of loss through theft can be minimized.

Be aware of the dangers posed by Wi-Fi. Secure office networks and make sure that you have updated anti-malware tools installed. If you are confronted with a situation where you believe that sensitive data may have been compromised, always look to a professional with sufficient credentials, and document the response in the event that law enforcement needs to become involved.


John Benson is a frequent lecturer on topics of technology, security and the law, and currently works as an electronic discovery consultant within the practice support division of Stinson Morrison Hecker LLP. He holds a law degree from the University of Missouri - Kansas City. You can reach him at jbenson@stinson.com or 816.691.2477. ]]> Tue, 22 Apr 2008 6:00:00 GMT <![CDATA[Real Estate e-Alert: Partial Payments Do Not Always Toll the Statute of Limitations For Foreclosure]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=731 http://www.stinson.com/legalpublications/smhlupage.asp?key=731
Consider the following scenario: In 1989, a seller/lender sold real property to a buyer, which included a promissory note and a deed of trust. The note was a five-year, non-assumable balloon loan with a maturity date of June 23, 1994. The buyer did not pay the balance of the note by the maturity date; however, the seller/lender did not foreclose. Instead, on April 27, 1995, the buyer sold the property, with the subsequent buyer agreeing to pay the original note. The subsequent buyer made regular payments before selling the property. The third buyer did not agree to pay the note, but made regular payments until June 2006. In September 2006, seller/lender attempted to foreclose on the property. The third buyer filed suit to enjoin the foreclosure, arguing that enforcement of the deed of trust was barred by the statute of limitations.

In the above example, since the note matured on June 23, 1994, foreclosure should have taken place on that date. The statute of limitations would require foreclosure to take place within 10 years following maturity, but in the example, that was not done until September 2006, two years and two months after the statute of limitations had run.

While partial payments can toll the statute of limitations, the law requires that partial payments be made by someone legally bound to pay the debt. A payment made by someone for their own convenience, a "volunteer," is not sufficient to toll the statute of limitations. In the above example, only the original buyer had a legal obligation on the note; both subsequent buyers had no obligation with the seller/lender.

What this means to you: If a note reaches maturity but is not paid, a new instrument should be executed, outlining the renegotiated terms. If not, as a seller/lender, your ability to foreclose may be barred.

For more information on this e-Alert, contact Jeff Unger at 816.691.3118 or Dave Frantze at 816.691.3181.]]> Fri, 18 Apr 2008 6:00:00 GMT <![CDATA[Health Care e-Alert: CMS Memorandum Clarified Physicians' EMTALA  On-call Obligations]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=727 http://www.stinson.com/legalpublications/smhlupage.asp?key=727
The Memorandum suggests two clarifications for physicians with on-call obligations:

  1. Appendix V currently permits an on-call physician to direct a non-practitioner, such as his or her physician's assistant, to respond to an emergency room call as his "representative." The Memorandum clarifies that the hospital and the on-call physician may be subject to EMTALA sanctions if a treating physician requests the appearance of the on-call physician and rejects a proposal for the on-call physician to send a representative, and the on-call physician either fails or refuses to personally appear or sends his or her representative.

  2. A second source of confusion has been the ability of on-call physicians to consult with a treating physician through the telephone or other electronic means without violation of EMTALA. The Memorandum clarifies that a treating physician can remotely consult with an on-call physician. The Memorandum further provides that EMTALA violations arise when an on-call physician has been requested to appear at the hospital by the treating physician, and the physician fails or refuses to appear within a reasonable time.

What this means to you: Final revisions to Appendix V will be released as a publications manual transmittal letter later this year. Because the Memorandum is effective immediately for all surveyors, hospitals should review their on-call policies to ensure that such policies conform to the Memorandum's clarifications.

For more information on this e-Alert, contact Patricia Zieg at 402.930.1714 or Megan Gerriets at 402.930.1729. ]]> Tue, 15 Apr 2008 6:00:00 GMT <![CDATA[Real Estate e-Alert: Twenty-Six-Year-Old TIF Statute Evolving in Missouri]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=711 http://www.stinson.com/legalpublications/smhlupage.asp?key=711
Prior to condemning a property in Missouri, a condemning authority must satisfy a statutory two-prong test: (1) the condemning authority must “individually consider each parcel of the property in the defined area with regard to whether the property meets the relevant statutory definition of blight;” and (2) “if the condemning authority finds a preponderance of the defined redevelopment area is blighted, it may proceed with condemnation of any parcels in such area.”

The requirements imposed by this statute were interpreted in a recent case handed down by the Missouri Court of Appeals, Western District. In Allright Properties, Inc. v. Tax Increment Fin. Comm’n of Kansas City, the condemning authority must first consider each parcel apart from the others to determine whether it is blighted. The court determined that, for purposes of a tax increment financing project, a parcel is blighted if it “retards the provision of housing accommodations or constitutes an economic or social liability or menace to the public health, safety, morals or welfare in its present condition and use.” While the condemning authority must evaluate each parcel separately, it is not required to make a finding relating to the presence or absence of blight for each specific parcel. After the evaluation of each parcel, the condemning authority may only proceed with condemnation if a preponderance of the defined redevelopment area taken as a whole is blighted. The court held that this prong of the test required a consideration of the total square footage of the redevelopment area, and not whether a majority of the individual parcels were blighted. As a result, the condemning authority must find that the total square footage of blight in the redevelopment area is greater than the square footage of land in the area that is not blighted before it may proceed with condemnation.

It is important to note that Missouri’s TIF statute restricts a redevelopment area to only those parcels of property that are “directly and substantially benefited by the proposed redevelopment project.” This restriction acts as added protection to non-blighted parcels from a government taking by eminent domain. As a result, a condemning TIF authority may not add blighted parcels to a proposed redevelopment area solely for purposes of meeting the statutory “preponderance” requirement, if that area would not be directly benefited by the proposed redevelopment.

Similarly, this summer the Supreme Court of Missouri considered the issue of “blight” in Centene Plaza Redevel. Corp. v. Mint Prop., in connection with a development involving tax increment financing. The Court reviewed a decision made by the City of Clayton to accept a proposed three-phase project that included formation of a redevelopment corporation, tax abatement and eminent domain power. The Court determined that for urban redevelopment corporations a “blighted area” must present both an “economic liability” and a “social liability.” The Court held that evidence to support a finding of one could not be used to support a finding of the other. While the age, obsolescence, outmoded design and physical deterioration of some of the property constituted “economic liability” in the redevelopment area, Centene failed to prove that the redevelopment area constituted a “social liability” that is injurious to the health, safety and welfare of the public as required by the TIF statute. The Court also noted that the prospective benefits of the redevelopment cannot serve as evidence of social liability, reasoning that only the current state of the property can be used to prove blight.

The third notable decision was issued on December 26, 2007, when the Missouri Court of Appeals, Eastern District ruled in State ex rel. City of Desloge v. St. Francois County, that where a TIF is created by a city, the TIF statute does not authorize a county to withhold an administrative fee for collecting and remitting its portion of economic activity taxes and payments in lieu of taxes without approval by the applicable city TIF Commission.

The foregoing decisions illustrate how tax increment financing in Missouri continues to carry some degree of uncertainty for the parties involved. It is imperative that every party to the TIF process seek out experienced counsel to ensure compliance with the TIF law at every stage of approval.


To learn more about this or another real estate topic, contact Dave Frantze at 816.691.3181 or Tom Smallwood at 314.259.4585. ]]> Mon, 14 Apr 2008 6:00:00 GMT <![CDATA[Stinson Morrison Hecker LLP Health Care e-Alert: Medical Lien Statute Amended]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=721 http://www.stinson.com/legalpublications/smhlupage.asp?key=721 Neb. Rev. Stat. 52-401, the Medical Lien Statute. The changes went into effect when approved. Of importance to health care providers is that the changes to the statute clarify that a provider's charges under a perfected lien are only subject to reduction when the provider has contracted for a discount or other limitation with a private medical insurance or health benefit plan. The limitation does not apply to reimbursement under public programs such as Medicare and Medicaid. The provider's option, if available, to pursue full payment when a public program is primary is not affected by LB 586.

In 2004, the Nebraska Supreme Court ruled in Midwest Neurosurgery, P.C. v. State Farm Ins., that when a provider has entered into a managed care contract to accept a rate less than its full charge, the lower contracted rate becomes the provider's usual and customary charge for purposes of the Medical Lien Statute. Since that time there has been a question whether that decision applied to public programs such as Medicare. The changes made by LB 586 make it clear the discount provisions only apply to private programs; not public. When a patient has health benefits under a public program as his/her primary insurance, the provider has all options available under those public rules including, to waive billing Medicare and pursue the potential liability settlement at full charges.

In addition to the above, LB 586 brought chiropractors under the statute's umbrella. Chiropractors now have the protections and the obligations of the Medical Lien Statute. Remember, that the Medical Lien Statute does not require a provider to pay the injured party's attorney's fees and costs. While these attorney's fees have precedence over a provider's lien, the provider is not obligated to pay, in any proportion, those fees.

Also of note, a late amendment provides that even when there is a contractual discount or other limitation, the full provider charge is the measure of damages for medical expenses and not the discounted rate. This last amendment may, or may not, be a subject for future legislative sessions.

For additional information on this or any other Health Care e-Alert, contact Patricia Zieg at 402.930.1714, or Carl Bowman at 402.930.1730. ]]> Wed, 9 Apr 2008 6:00:00 GMT <![CDATA[IP&T e-Alert: To Patent Or Not To Patent? — An Important Strategic Question]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=719 http://www.stinson.com/legalpublications/smhlupage.asp?key=719 CRS Report for Congress discussing the House and Senate bills (H.R. 1908 and S.1145) that attempt to respond to current concerns about the functioning of the U.S. patent process. The report highlighted that one of the most significant proposed reforms is a shift to a first-inventor-to-file priority system from the current first-to-invent system.

The report explains that in every patent-issuing nation except the United States, priority of invention is established by the earliest effective filing date of a patent application disclosing the claiming invention. Under the proposed system, the first inventor takes a back seat to the inventor who first makes a patent filing.

Under the current U.S. first-to-invent system, invention priority disputes may be resolved via interference proceedings conducted at the USPTO. A shift to first-inventor-to-file system would eliminate the need for this interference proceeding, and instead the applicant with the earliest filing date would be eligible for the patent.

Among the merits of the first-to-invent system are: 1) no race to the patent office creating inequities; 2) no premature and sketchy technological disclosures; and 3) no hastily filed patent applications.

Among the benefits of the first-inventor-to-file system are: 1) a definite, readily determined and fixed date of priority; 2)greater legal certainty as to priority; 3) a decrease in the complexity, length and expense associated with current USPTO interference proceedings; 4) absent the need to conduct interference proceedings, an increase in the process of innovation; and 5) most U.S. firms are already familiar with first-to-invent requirements in order to avoid forfeiture of inventor client's patent rights abroad.

The report noted that a first-inventor-to-file system would still bar one individual from copying another's invention, and then, by merely being the first to file the application, be entitled to the patent. As a bedrock principle, all patent applicants must have conceived the invention themselves and must not have derived the invention from another. This requirement would be enforced in both proposed bills by providing "inventor's rights contests" that would allow the USPTO to determine which applicant is entitled to a patent on a particular invention.

So, what does this mean to you? If, for example, a first inventor-in-fact maintained his invention as a trade secret for many years before seeking patent protection, he may be judged to have abandoned, suppressed, or concealed the invention. In such a case a second inventor-in-fact may be awarded the patent on that invention. Courts have reasoned that this statutory rule encourages individuals to disclose their inventions to the public promptly, or give away to an inventor who in fact does so. Therefore, the proposed reforms may affect the decision for companies to proceed with patent protection versus trade-secret benefits in the future.

For further information on this or another IP&T e-Alert, contact Tim Feathers at 816.691.2754 or John Lepore at 816.691.2316. ]]> Tue, 8 Apr 2008 6:00:00 GMT <![CDATA[Business Litigation e-Alert: Supreme Court to Hear Fourth Circuit Case Extending Basis for Federal Jurisdiction]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=720 http://www.stinson.com/legalpublications/smhlupage.asp?key=720 Discover Bank v. Vaden involved a Discover credit card holder, Betty Vaden, who allegedly failed to pay her card balance. DFS, a servicing agent for Discover Bank, brought suit on behalf of Discover against Ms. Vaden in Maryland state court. Ms. Vaden filed class-action counterclaims based on alleged violations of state law. Discover then filed a complaint in federal court seeking to compel arbitration under § 4 of the Federal Arbitration Act (FAA) based on a provision in the Cardmember Agreement requiring arbitration of disputes.

Federal courts have jurisdiction to hear disputes that arise under federal law pursuant to 28 U.S.C. § 1331. The FAA, however, does not provide a basis for federal court jurisdiction, and arbitration agreements are contracts that are typically governed by state law. Nevertheless, the Fourth Circuit ruled the trial court had jurisdiction to compel arbitration. Looking beyond the face of Discover’s federal court complaint, the Fourth Circuit determined that, even though Ms. Vaden’s counterclaims were grounded in state law, they were completely preempted by the Federal Deposit Insurance Act, and thus a federal question was presented.

While some circuits have issued similar rulings, others have found that no federal jurisdiction exists to enforce arbitration agreements even if the underlying issue to be arbitrated involved federal law. The Supreme Court granted certiorari and will consider two issues on review: (1) whether a federal court can consider the nature of the underlying dispute when it is deciding whether it has federal question jurisdiction (28 U.S.C. § 1331) over an action seeking to enforce an arbitration agreement pursuant to Section 4 of the FAA; and, if so, (2) whether a completely preempted state law counterclaim can supply federal question subject matter jurisdiction.

What this means to you: If your organization has entered into an agreement that requires disputes to be arbitrated, the coming Supreme Court decision will likely provide guidance as to where you can go to enforce your arbitration agreement. If the Supreme Court affirms the Fourth Circuit ruling, and if the underlying dispute you have involves issues of federal law, you should be able to go to federal court to enforce that arbitration agreement. The coming decision may also affect when cases pending in state courts can be removed to federal courts.


For further information on this alert, please contact Matt Salzman at 816.691.2495 / msalzman@stinson.com or Eric Silverstein at 314.259.4557 / esilverstein@stinson.com or any member of Stinson Morrison Hecker's Business Litigation Division.

Stinson Morrison Hecker LLP's Business Litigation e-Alert is a periodic e-mail service designed to provide current information on developments in the law that may be of interest to the business community. It is intended to provide general information only, and does not constitute a legal opinion or legal advice. Please consult an attorney about specific concerns in this area. ]]> Mon, 7 Apr 2008 6:00:00 GMT <![CDATA[Corporate Finance e-Alert: Am I Protected if My Broker Fails?]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=709 http://www.stinson.com/legalpublications/smhlupage.asp?key=709
What protects my assets at the brokerage firm?
Although SEC rules require registered broker-dealers to maintain net capital, if the broker-dealer fails, a second layer of protection is provided if the broker is a member of the Securities Investor Protection Corporation (the "SIPC"). SIPC, formed in 1970, acts as the insurance body for the brokerage industry and is funded by member broker/dealers.

What does SIPC cover?
SIPC protects clients of brokerage firms in two situations: (1) if a brokerage firm fails or (2) if a customer's securities are stolen by a broker. In those two situations, SIPC will replace missing stocks and other securities where it is possible to do so. SIPC does not insure against loss recognized from decreasing market value of securities. SIPC also does not protect investors in the event of fraud or deceptive selling practices by brokers.

SIPC does not protect certain customers, including those who were partners, officers or directors of the failed brokerage firm. Also, SIPC funds (discussed below), will not be used to restore certain types of investments, including commodity futures contracts and currency, as well as investment contracts (such as limited partnerships) that are not registered under the Securities Act of 1933, as amended.

What happens when a brokerage firm fails?
In a liquidation proceeding, SIPC intervenes, acting as a trustee or working with an independent court-appointed trustee, and attempts to satisfy each customer's claim by recovering that customer's cash, stocks, bonds, or options held by the failed broker. In an SIPC proceeding, there are two types of property for which a customer of the failed broker receives preferential treatment: (1) securities held in the customer's name (i.e., not held in street name) and (2) the fund of total customer property.

In a broker liquidation proceeding, securities actually registered in a customer's name (i.e., not held in street name) that are in the possession or control of the failed broker are returned outright to that customer regardless of the value of the securities. All other property of the broker held for the customers of the broker (i.e., cash and street name securities) becomes part of a fund of customer property. The property in this fund is then divided and distributed pro rata among the customer claims. If after this process, a customer's claim has not been satisfied, the SIPC reserve funds will be used, up to $500,000 per customer including up to $100,000 for cash claims, to make the customer whole.

Josephine Wang, the General Counsel for SIPC, provided the following example of SIPC coverage in a broker liquidation proceeding:

  • Assume that a customer is owed $1 million in customer name securities, and $1 million in securities held by the broker in street name. Assume also that 10% of customer property is missing. What does the customer get?

    The customer receives: (i) $1 million in customer name securities, and (ii) $1 million in securities, of which $900,000 will come from the fund of customer property and $100,000 will come from SIPC.

What if I have more than one brokerage account?
The $500,000 protection limit cannot be circumvented by merely opening multiple accounts with the same broker. All accounts opened under the same customer name and taxpayer identification number will be aggregated for purposes of reaching the dollar amount limits. Accounts opened by a customer in "separate capacities," however, will not be aggregated. For instance, the following accounts would not be aggregated: (i) husband's individual account; (ii) wife's individual account; (iii) husband's and wife's joint account; (iv) husband's IRA account; (v) wife's IRA account; (vi) husband's revocable trust account; and (vii) wife's revocable trust account. The dollar amount limits apply separately to each broker. For example, if an individual maintained accounts with two separate brokers, and in the event that both brokers became insolvent, the SIPC would protect up to $500,000 of the customer's securities held by each broker.

Does SIPC’s $100,000 limit on “cash claims” include funds held in a money market securities account?
No. The $100,000 limit for cash claims applies only to cash in an account used for the sale or purchase of securities, and does not include money market fund securities or other highly liquid instruments.

What precautions should I take?
  • Make sure your broker has SIPC insurance (by checking ads, its website, applications and forms). You may also contact the SIPC at 202-371-8300 or www.sipc.org.

  • Keep copies of trade confirmations as well as your latest monthly or quarterly statement from the brokerage firm. You may need them to prove your SIPC claim.

  • Ask whether your broker carries insurance above and beyond SIPC coverage.

  • Spread your money across multiple brokerages, staying under the $500,000 limit on each account.

      For more information, contact Mike Lochmann at 816-691-3208 or Vicki Westerhaus at 816-691-2427.
    ]]>     Mon, 24 Mar 2008 6:00:00 GMT     <![CDATA[Business Litigation e-Alert: Supreme Court Expands Reach of National Policy Favoring Arbitration ]]> http://www.stinson.com/legalpublications/smhlupage.asp?key=706 http://www.stinson.com/legalpublications/smhlupage.asp?key=706 Preston v. Ferrer involved a contract between Alex Ferrer, a former trial court judge who currently stars on Fox television as “Judge Alex”, and California entertainment attorney Arnold Preston. Their contract included an agreement to arbitrate “any dispute . . . relating to the terms of [the contract] or the breach, validity, or legality thereof . . . in accordance with the rules [of the American Arbitration Association].” After Preston invoked the contract’s arbitration clause to resolve a dispute over fees, Ferrer petitioned the California Labor Commissioner for a finding that the contract was void on the grounds that Preston acted as a talent agent without the license required by the California Talent Agencies Act (TAA). Ferrer sought to avoid arbitration, claiming that the California Labor Commissioner’s exclusive original jurisdiction to evaluate Preston’s status as a talent agent under the TAA could not be displaced by the FAA. Relying on the 2006 Supreme Court decision in Buckeye Check Cashing, Inc. v. Cardegna, the Court explained that when parties agree to arbitrate all disputes arising under a contract, questions concerning the validity of the entire contract are to be resolved by the arbitrator in the first instance, not by a federal or state court, or even an administrative tribunal. Ferrer’s claim that the contract was void under the TAA was therefore a question that had to be resolved by the arbitrator, as opposed to the California Labor Commissioner. The Court noted, however, that although Ferrer procedurally committed himself to resolution of his claims in an arbitral forum, he still did not relinquish any of his substantive rights afforded under the TAA or other California law. Note also that Preston v. Ferrer does not appear to apply in circumstances governed by the McCarran-Ferguson Act, 15 U.S.C. § 1012(b)(federal law does not preempt state law concerning regulation of insurance).

    What this means to you: This decision provides additional authority for compelling arbitration of disputes, even when they involve the validity of the contract containing the arbitration agreement. Courts will continue to give deference to the national policy favoring arbitration of claims that parties contract to settle via arbitration. If your organization is a party to a contract containing an agreement to arbitrate, a Court may even require you to arbitrate issues that otherwise appear to be exclusively within the jurisdiction of a specific judicial or administrative forum.



    For further information on this alert, please contact
    Mark Hinderks at 913.344.6706/mhinderks@stinson.com or Cicely Lubben at 314.259.4521/clubben@stinson.com.

    Stinson Morrison Hecker LLP's Business Litigation e-Alert is a periodic e-mail service designed to provide current information on developments in the law that may be of interest to the business community. It is intended to provide general information only, and does not constitute a legal opinion or legal advice. Please consult an attorney about specific concerns in this area. ]]>     Tue, 4 Mar 2008 6:00:00 GMT