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Oct142013

U.s. Department Of Justice Awaits Swiss Banks? Voluntary Disclosure Of Banking Activities







U.S. Department of Justice Awaits Swiss Banks? Voluntary Disclosure of Banking Activities
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The U.S. Department of Justice (?DOJ?) established a Program for Non-Prosecution Agreements or Non-Target Letters for Swiss Banks (the ?Program?) on August 29, 2013. The Program is intended to facilitate a resolution with the approximately one hundred Swiss Banks not already under investigation in connection with the DOJ?s ongoing probe of the use of foreign bank accounts to commit tax evasion from August 2008 forward (the ?Applicable Period?). The DOJ and Swiss authorities are cooperating, having jointly announced the Program, and in that announcement noting that Switzerland ?intends to draw the attention of the Swiss Banks to the terms of the Program and encourages them to consider participating therein,? with the DOJ further warning of ?significant risks for individuals and banks that continue to fail to cooperate.?
The Program identifies four categories of Swiss Banks, and permits three of the four categories to participate in the Program. Category 1 Banks, those which are already subject to DOJ investigation, are ineligible. Swiss Banks may self-identify as a Category 2, Category 3, or Category 4 Bank, but the DOJ requires that a bank?s categorization ultimately be verified by a qualified independent attorney or accountant (an ?Independent Examiner?). While specific approval of the Independent Examiner is not required, the DOJ reserves the right object to a particular attorney or accountant (although the Program states that the DOJ will not act unreasonably in this regard).
Bank Categories
The categories of Banks are summarized as follows: 
A Category 1 Bank is one that is currently under investigation by the DOJ (based on prior statements, there are at least 14 financial institutions in this category).
A Category 2 Bank is one ?that has reason to believe it may have committed tax-related offenses . . . or monetary transactions offenses? under certain provisions of U.S. law (the ?Tax Offenses?) and is seeking a Non-Prosecution Agreement (?NPA?) from the DOJ.
A Category 3 Bank is one that does not have reason to believe it may have committed any Tax Offenses and is seeking a Non-Target Letter (?NTL?) from the DOJ.
A Category 4 Bank is seeking an NTL due to its qualification as a financial institution which, among other things, has a client base comprised almost exclusively of residents of Switzerland.
Benefits and Costs of a Non-Prosecution Agreement
A Category 2 Bank that executes an NPA and meets all of the obligations of the NPA will not be prosecuted by the DOJ for any of the Tax Offenses which occurred during the Applicable Period. However, if facts are later discovered by the DOJ which contradict the conclusions of the NPA, the United States may pursue any and all legal remedies available to it against the Swiss Bank (with the Swiss Bank agreeing to prosecution for any offenses for which the statute of limitations had not expired as of August 29, 2013).
A Swiss Bank that executes an NPA must agree to pay as a penalty an amount determined by reference to the maximum aggregate dollar value of its ?U.S. Related Accounts? (which, generally, includes accounts beneficially held by U.S. persons that exceeded $50,000). The penalty is equal to the sum of (A) for all such accounts that existed on August 1, 2008, 20% of the maximum aggregate dollar value of those accounts during the Applicable Period, plus (B) 30% of the maximum aggregate dollar value of all such accounts opened between August 1, 2008 and February 28, 2009, plus (C) 50% of the maximum aggregate dollar value of all such accounts opened after February 28, 2009. The maximum dollar values used for determining this penalty may be reduced to exclude accounts that if their existence was declared or disclosed to the IRS.
The DOJ retains the right to require a Swiss Bank seeking an NPA to enter into a Deferred Prosecution Agreement (DPA) instead of an NPA.
Benefits and Costs of a Non-Target Letter
A Swiss Bank that successfully requests an NTL will receive a letter from the DOJ stating that, as of the date of the NTL and based on the facts at that time, the bank is ?not the target of a criminal investigation? related to the Tax Offenses. In contrast to an NPA, and because it confirms that there has been no wrongdoing, there is no penalty associated with obtaining an NTL. However, if facts are later discovered by the DOJ which contradict the conclusions of the NTL, the United States may pursue any and all legal remedies available to it against the Swiss Bank (with the Swiss Bank agreeing to prosecution for any offenses for which the statute of limitations had not expired as of August 29, 2013).
Requirements of a Request for a Non-Prosecution Agreement or Non-Target Letter
Category 2 Banks are required to request an NPA on or before December 31, 2013, while Category 3 Banks and Category 4 Banks may request an NTL Letter between July 1, 2014 and October 31, 2014.
A request for an NPA must include a plan for complying with the requirements of an NPA (described below) within a reasonable time, but not to exceed 120 days from the date of the letter of intent (subject to a potential 60 day extension). In addition it must provide the Lawyer Marketing, ProLawPress.com, Attorney Marketing, Lawyer Websites, Websites for Lawyers identity and qualifications of the Independent Examiner, state that the Swiss Bank will maintain all records required for compliance with the terms of an NPA, including all records that may be sought by treaty requests; and state that the Swiss Bank agrees that with respect to any applicable statute of limitations that has not expired as of August 29, 2013, the Bank waives any potential defense based on the statute of limitations for the period from August 29, 2013 to the issuance of an NPA or a DPA.
A request for an NTL (as a Category 3 Bank or Category 4 Bank) must include a plan for complying with the requirements of an NTL (described below) within a reasonable time, but not to exceed 120 days from the date of the letter of intent. In addition it must provide the identity and qualifications of the Independent Examiner, state that the Swiss Bank will maintain all records required for compliance with the terms of an NTL; and state that the Swiss Bank agrees that with respect to any applicable statute of limitations that has not expired as of August 29, 2013, the Swiss Bank waives any potential defense based on the statute of limitations for the period from August 29, 2013 to the issuance of an NTL.
Conditions to receiving a Non-Prosecution Agreement 
A Category 2 Bank requesting an NPA must cooperate in the disclosure of certain evidence and information and have that information verified by an Independent Examiner. That evidence and information includes: 
prior to executing the NPA, an in-person presentation and documentation conveying information as to how the bank?s cross-border business was structured, operated, supervised, and marketed to U.S. account holders, along with the names and functions of those individuals who managed and service U.S. Related Accounts;
prior to executing the NPA, the total number of U.S. Related Accounts and the maximum dollar value, in the aggregate, of the U.S. Related Accounts in existence on August 1, 2008, opened between August 1, 2008 and February 28, 2009, and opened after February 28, 2009; and
upon execution of the NPA, the total number of U.S. Related Accounts that were closed during the Applicable Period, and for each account (1) the maximum value during the Applicable Period, (2) the number of U.S. persons or entities affiliated (or potentially affiliated) with each account and the nature of such affiliation, (3) whether the account was held in the name of an individual or an entity, (4) whether it held U.S. securities, (5) the name and function of any relationship manager, client advisor, asset manager, financial advisor, trustee, fiduciary, nominee, attorney, accountant, or other similar person known to the bank to be affiliated with the account, and (6) information related to fund transfers into and out of the account.
While the bank will not be required to provide specific account information (e.g., accountholder names and addresses) to the DOJ, the bank must agree to cooperate with the United States in its investigations. This cooperation includes: 
providing information for the DOJ to draft treaty request to seek account information, and collecting and maintaining all records that are potentially responsive to those requests;
retaining all records relating to its U.S. cross-border business, for a period of 10 years;
providing, upon request, testimony or information as needed to enable the United States to use the information obtained through the Program or a treaty request in a future proceeding, and assistance in identification and transaction of significant documents at the expense of the bank;
closing any and all accounts of recalcitrant account holders, and implementing procedures to prevent further concealment of those accounts in connection with closing the account or transferring any funds; and
only opening U.S. accounts on conditions that ensure the account will be declared to the United States and will be subject to disclosure by the Swiss Bank.
Conditions to Receiving a Non-Target Letter
A Swiss Bank requesting an NTL as a Category 3 Bank must engage an Independent Examiner to conduct an independent internal investigation, and the bank and the Independent Examiner must:
verify the percent of the Swiss Bank?s account holdings and assets under management that are U.S. Related Accounts;
verify that the bank has an effective compliance program, and provide a description of that program; and
provide a report that includes a list of witnesses interviewed by the Independent Examiner and a summary of the information provided by each witness, identification of the files reviewed by the Independent Examiner and the factual findings and conclusions of the Independent Examiner.
The Category 3 Bank does not have the same level of information reporting requirements as a Category 2 Bank requesting an NPA, but the bank must still agree to:
maintain all notes, drafts correspondence, etc. created by, prepared by, reviewed by or provided to the Independent Examiner for a period of 10 years;
close any and all accounts of recalcitrant account holders, and to implement procedures to prevent further concealment of those accounts in connection with closing the account or transferring any funds; and
only open U.S. accounts on conditions that ensure the account will be declared to the United States and will be subject to disclosure by the Swiss Bank.
A bank requesting an NTL as a Category 4 Bank must also engage an Independent Examiner for the purpose of verifying that it has met the requirements to be a Category 4 Bank described above. The bank must also agree to maintain records sufficient to establish the basis for verification of its status for a period of 10 years.
Questions Remain
The announcement of the Program has piqued the interest of the Swiss banking community as well as the U.S. and Swiss press. The Program raises many questions, and there is the hope that the DOJ will release additional guidance to assist with Program. In particular, 
What are the criteria that the DOJ is looking for in an Independent Examiner? What type of accountant or attorney would the DOJ object to?
Under what circumstances would the DOJ allow a bank applying for an NPA as a Category 2 Bank to shift its position to apply for an NTL?
What will the DOJ require of a Category 2 Bank in order to exclude the value of its compliant U.S. Related Accounts to reduce the required penalty payment?
What is the likelihood of investigation of a bank that does not submit a request under the Program, or one that submits a request but ultimately withdraws that request?
The determination of whether a Swiss Bank is able to obtain an NPA or an NTL under the Program is a difficult one, and the decision to participate in the program is a decision that should not be made lightly. Dechert tax and internal investigation lawyers can work with banks to examine these questions under the Program and help to determine the correct approach. Clients regularly count on our lawyers for skillful representation in all aspects of contested tax matters, including investigations, and we have an impressive track record of resolving these difficult and sensitive matters discreetly and favorably without prosecution.

For the original version including any supplementary images or video, visit http://www.jdsupra.com/legalnews/us-department-of-justice-awaits-swiss-99307/

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Oct132013

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Oct132013

First Circuit Addresses ?insured Location? Exclusion In Homeowner?s Policy


First Circuit Addresses ?Insured Location? Exclusion in Homeowner?s Policy
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In its recent decision in Vermont Mut. Ins. Co. v. Zamsky, 2013 U.S. App. LEXIS 20569 (1st Cir. Oct. 9, 2013), the United States Court of Appeals for the First Circuit, applying Massachusetts law, had occasion to consider the applicability of exclusions in homeowners policies limiting coverage to insured locations.
The underlying loss arose out of a fire at what appears to have been a summer home which was owned by the insured but not identified in the insured?s homeowner?s policy as an ?insured location.? The insured?s daughter and several of her friends went to the house and while there tried to light a fire in a portable fire pit. Gasoline was introduced to the fire, resulting in a large flash of flames that caused severe burns to three of the individuals present. Suit was later brought against the insured, and the matter was tendered to the insured?s homeowner?s insurers: two primary insurers and an umbrella insurer. The carriers agreed to provide the insured with a defense, subject to a reservation of rights to deny coverage based on what the court described as a ?UL? exclusion (presumable uninsured location), precluding coverage for bodily internet injury:
            e. Arising out of a premises:
        (1) Owned by an "insured";
        (2) Rented to an "insured"; or
        (3) Rented to others by an "insured";
that is not an "insured location". . .
The coverage dispute eventually resulted in litigation, and on motion for summary judgment, the United States District Court for the District of Massachusetts held that the exclusion was inapplicable because the fire did not result from a condition inherent to summer home.
On appeal, the First Circuit observed the lack of any decisions by Massachusetts? highest court ? the Supreme Judicial Court ? construing the UL exclusion. The court nevertheless found instructive two decisions from the Massachusetts Appeals Court in Callahan v. Quincy Mutual Fire Insurance Co., 736 N.E.2d 857 (Mass. App. Ct. 2000) and Commerce Insurance Co. v. Theodore, 841 N.E.2d 281 (Mass. App. Ct. 2006). In the Callahan decision, the Appeals Court held the exclusion inapplicable to a dog bite that happened at location owned by the insured, but not otherwise an ?insured location,? because the dog was not a condition of the premises. In Theodore, the Appeals Court held the exclusion applicable where a third party was on a premises owned by the insured, but not an ?insured location,? to perform repair work on the premises. Under such circumstances, the injury happened because of a condition inherent to the premises, and as such, the injury could be considered to have arisen out of the non-insured location.
The First Circuit reasoned that the Callahan and Theodore cases stand for the general principal that the phrase ?arising out of a premises? as used in the UL exclusion means arising out of a condition of the premises. As the court explained:
... the cases establish a dichotomy: if the covered occurrence arises out of a condition of the premises and the exclusion's other requirements are satisfied, the exclusion applies; otherwise, it does not.
The court further noted that this reading of the exclusion comported with case law from other jurisdictions, such as Louisiana and Ohio.
With this rule in mind, the court agreed that the exclusion was inapplicable to the underlying burn case because the fire was not caused by a condition of the premises. Rather, the fire arose out of the use of the fire pit. Because the fire pit was a portable device that was not inherently a part of the premises, and could not be considered a defect in the premises, there simply was not a sufficient connection between the home and the fire as required for the exclusion to apply.

For the original version including any supplementary images or video, visit http://www.jdsupra.com/legalnews/first-circuit-addresses-insured-locatio-86480/

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Oct132013

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Oct132013

If The U.s. Supreme Court Overturns Political Contribution Limits Next Year, Will Your Campaign Be Ready?


If the U.S. Supreme Court Overturns Political Contribution Limits Next Year, Will Your Campaign Be Ready?
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The U.S. Supreme Court, which heard oral argument in McCutcheon vs. FEC this week, may overturn the aggregate contribution caps that have governed federal elections since 1974. If so, candidates should prepare now for the political landscape that will exist come June.
The question posed by Shaun McCutcheon, a wealthy Alabama businessman who sought to step up his political contributions to federal candidates, was this: how can it be constitutional, under the guise of preventing corruption, to permit a donor like him to give maximum contributions to nine federal candidates but not 10? After all, that is the effect of a $48,600 aggregate contribution limit imposed by federal law. There are similar caps restricting aggregate contributions to parties and PACs ($74,600), and an overall limit ($123,600) as well. (These caps are indexed for inflation every two years). The law?s defenders counter that wealthy donors should not exert undue influence on the political process and that aggregate limits are necessary to prevent circumvention of the base limits, currently set at $2,600 per candidate per election. In fact, these aggregate contribution caps passed constitutional muster before the Supreme Court nearly 40 years ago.
Based on the oral argument, most observers predict a divided court will strike down one or more of these aggregate limits. (For example, the court may strike down the contribution cap applicable to candidates but uphold the cap applicable to parties and PACs). A decision may not come until June, but if candidates wait to adjust, it will likely be too late. Your playbook should be amended now.
The reality is that, if the aggregate caps are struck down, certain existing laws will Lawyer Marketing, ProLawPress.com, Attorney Marketing, Lawyer Websites, Websites for Lawyers become less restrictive and money will more easily flow through lawful channels. Here are two potential examples.
First Super-PACs, Now Super-JFCs. Joint fundraising committees typically sponsor star-studded events where donors write one big check. In April 2012, for example, a ticket to President Obama?s ?Women?s Issues Conference? cost top donors $75,800. (Romney Victory was no different). That amount represented the maximum possible contribution under 2012 limits. Without aggregate caps, JFCs could have raised over $500,000 per person.
The advantage for candidates could come in the form of coordinated party expenditures. As a hypothetical example in a post-McCutcheon world, a donor might contribute $200,000 to a JFC, having four specific Arizona representatives in mind. Those funds are distributed among various state parties but eventually make their way to a state party in Arizona to conduct coordinated expenditures. This is how a party pays for goods/services to benefit a candidate?s general election (for example by paying campaign bills or coordinating campaign advertising) without triggering an ?in-kind? contribution. Thus, while direct and in-kind contributions by parties are limited to $5,000, parties may spend up to $46,600 (in 2013 dollars) in coordinated expenditures per House race. This is nothing new. However, our hypothetical JFC donor?who would normally bump up against aggregate limits?now could see that all four preferred candidates receive the full benefit of coordinated expenditures.
The lower court worried that ?the candidate who knows the coordinated expenditure funding derives from that single large check ? will know precisely where to lay the wreath of gratitude.? But the Supreme Court might decide, notwithstanding these concerns, that the caps are unconstitutional under the First Amendment.
Candidates regularly jockey for coordinated money. It is unclear how that process will change, but it will change if the Court strikes down the limits. Candidates therefore should have a plan in place to tap any new resources that become available.
Candidate-Specific PACs. Candidates cannot establish multiple committees to receive multiple $2,600 contributions. Nor can donors earmark a PAC contribution for a particular candidate if the donor has already maxed out contributions to that candidate. However, nothing prevents a donor from making $5,000 contributions to various PACs that the donor hopes will contribute to his/her preferred candidates. Regulations merely prevent contributions given ?with the knowledge that a substantial portion will be contributed to that candidate.?
With aggregate limits, it does not make much sense to test that boundary or attempt to maximize the multiplication effect of PACs. For example, it would probably not be worth the time or effort to establish only a handful of PACs and keep track of various donors? contribution capacities. In particular, it would be cumbersome to track what amounts donors gave to what federal candidates, evaluate how much ?cap room? they have left, and strategically direct their remaining contribution amounts to a handful of candidate-friendly PACs.
But without any caps whatsoever, it may be tempting to establish potentially dozens of PACs that can be expected to support certain candidates. Lawyers will then be asked by clients?likely to be donors or past aides of those candidates who are suddenly interested in forming an array of innocuous-sounding organizations?how much distance they must maintain from a particular campaign. The implicit goal would be to create a network of PACs, ?independently? run by unaffiliated volunteers but who can reliably be counted upon to support a particular candidate. The effect, defenders of the aggregate caps worry, will be that donors circumvent the base contribution limits by exponentially making PACs contributions in a way not previously possible.
These are just two examples of what a post-McCutcheon world might look like. While some may think the sky is falling, take solace: myriad prophylactic measures will survive this ruling. Earmarking prohibitions, enforced by the FEC, will still be in place. Contributions and expenditures will be disclosed. And watchdogs can still be expected to shine a light on suspicious activity.
Whether the sea change brought about by McCutcheon will undermine the campaign finance system is ultimately for Congress to decide. In the meantime, however, candidates may want to prepare for this potential change now or risk being at a competitive disadvantage when the Supreme Court?s decision is rendered next year.

For the original version including any supplementary images or video, visit http://www.jdsupra.com/legalnews/if-the-us-supreme-court-overturns-poli-77532/

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