Split decisions

Federal, state changes to maintenance shake up family law

Federal, state changes to maintenance shake up family law

By Tequia Burt
Chicago Lawyer correspondent

New legislation on both the federal and state level is affecting how family lawyers in the Chicago area conduct business.

“All the new legislative changes, both in Illinois maintenance and child support laws and in the federal tax laws and understanding how they all impact each other financially is one of the most important issues facing family lawyers today,” said Janet E. Boyle of Boyle Feinberg Sharma. “So many things that we’ve historically done and have been part of our way of doing things for many years have all of a sudden kind of been turned on their ear.”

Tremors from the federal Tax Cuts and Jobs Act of 2017 continue to be felt across the legal field. On Jan. 1, 2019, federal tax law permanently eliminated the ability of the spouse paying spousal maintenance, or alimony, to deduct the maintenance payments from gross income in their federal taxes.

Now, alimony payments are no longer tax-deductible for the maintenance payor and no longer included in the taxable income of the maintenance recipient.

“The Tax Cuts and Jobs Act at the federal level fundamentally sort of altered the landscape of maintenance,” said Brendan Hammer, a partner at Berger Schatz. “Maintenance going forward in new judgments is no longer tax-deductible. That has had an enormous impact on a lawyer’s ability to craft a creative settlement. Maintenance used to be deductible to the payor and includable in income to the payee, but now it is sort of tax-neutral. From a cash flow perspective, that sort of takes pieces off the table in terms of playing with tax treatment to arrive at a mutually advantageous figure.”

Previously, the tax deduction helped soften the blow to spouses reluctant to pay out huge alimony payments. The payor could deduct the payments, and the recipient got more money.

“Before the tax law took effect, high earners especially benefited — if you were taking maintenance dollars and making them tax-deductible at a high tax rate and then making them taxable at a lower tax rate for the payee, then both people ended up with more money because you were taxing the dollars that were being paid at alimony at a lower tax rate than they would be taxed at if the person paying maintenance were paying the tax,” explained Meighan Harmon, managing partner at Schiller Ducanto & Fleck. “For some families, it created a little bit of a tax arbitrage where you could end up with a little bit more net cash to give, to allocate between ex-spouses. Now we have to do the calculations based upon net income as opposed to looking at growth income and taking advantage of that tax arbitrage.”

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Originally published in August 2019 in Chicago Lawyer

 

The new legal eagles

In-house counsel step out of the back office and into the boardroom

In-house counsel step out of the back office and into the boardroom

By Tequia Burt
Chicago Lawyer correspondent

In the not so distant past, general counsels were thought of as strictly the “company lawyer,” largely responsible for litigation and doling out reactive legal advice. But in today’s ever more complex and sophisticated regulatory, technological, global and social landscapes, corporate legal leaders, including chief legal officers and general counsel, have leveraged their skills beyond the legal department into the C-suite and boardroom.

“The general counsel today versus the general counsel of 20 years ago is very, very different,” said Alan Tse, global general counsel and corporate secretary at Chicago Fortune 500 commercial real estate services company Jones Lang LaSalle, who serves on the board of the Association for Corporate Counsel.

“Now, we’re called upon to be business strategists and to be the gatekeeper of ethics. To lead compliance for the company, to lead, for the most part, a legal department as well as be part of the executive management team,” he said.

According the Association for Corporate Counsel’s annual 2019 survey of more than 1,600 legal leaders across the globe, chief legal officers and general counsels have more power than ever in their companies, finding that 93% of Fortune 500 chief legal officers report directly to the CEO.

In addition, almost 70% of chief legal officers indicated that the executive team seeks out their advice for business decisions, up 11 percentage points from last year. That means that general counsels are increasingly seen as top-level decision-makers charged not just with protecting the company from legal disaster but also for growing its business and leading its strategic direction.

“When my CEO looks over to me in a meeting and asks, ‘What do you think we should do?’ often that’s not asking me to make just a strictly legal analysis,” said Shelbie Luna, general counsel and vice president of administration at Bickerdike Redevelopment Corp., a nonprofit community development corporation concentrating its current efforts on Chicago’s Northwest Side.

“They are coming to me to make a pragmatic business decision. That decision-making certainly takes into account my legal knowledge, but also what I know that we’re trying to accomplish for the business — a means to an end,” she said.

Melvin Williams Jr., chief legal officer at Chicago Trading Co., stressed it’s of tantamount importance that today’s legal leaders really understand the ins and outs of their company’s business to be able to advise strategic direction.

“Sure, I’m giving legal advice all the time, but I’m also seeing, more and more, that I’m giving judgment advice when the issue isn’t so much a legal concern as much as a strategic business concern,” he said.

“And the better a lawyer understands the business, the better position they are in to advise the business, not just on the legal issues, but also beyond. Even though the law says you can do something doesn’t mean it’s in the best interest of the company’s business. What are the economic and reputational repercussions? What are the consequences?” he said.

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Originally published in July 2019 in Chicago Lawyer

Confidentially speaking

Do confidential settlements protect clients, or hide their secrets?

Do confidential settlements protect clients, or hide their secrets?

By Tequia Burt
Chicago Lawyer correspondent

People are talking about not talking.

“Last year alone we probably settled close to $40 million of settlements that were confidential, and it’s become more of an issue,” said Adria E. Mossing of Mossing & Navarre. “This was not happening 20 years ago — you may have had to negotiate a few, but it was very infrequent. Now, frequently, at mediation in particular, the issue of confidentiality comes up.”

Confidentiality agreements are designed to prohibit the parties to a settlement from disclosing the settlement terms and other details. Confidentiality presents numerous challenges for both the legal profession and society as a whole. For instance, how much of a right does the public have when it comes to knowing details of a medical-malpractice case? Or a case involving sexual abuse or harassment? And how much does keeping details secret handcuff attorneys who may be handling similar cases down the road?

Mossing, who began her career defending hospitals and doctors against insurance claims, now works on behalf of injured parties in complex medical-malpractice and personal-injury cases. Last year, her firm obtained settlements totaling more than $42 million, of which more than $35 million were confidential. She said that as the number of confidentiality settlements has risen, so too has her concerns that transparency at medical institutions is being eroded.

“The public needs to know when doctors and institutions do harm,” Mossing said. “Even if you don’t give the name of the institution, getting information out there about the settlement and the facts of the case at least gives patients the opportunity to ask their providers, ‘Is this something I should be concerned of? Do you have policies in place to handle this?’”

She added: “When a case is settled it’s important to be able to tell the public, ‘This catastrophic event happened at this hospital. But now, because of this terrible situation and our efforts to protect the family, now the public is more protected. Policies have changed.”

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Originally published in June 2019 in Chicago Lawyer

Playing defense

Special interrogatories, workers’ comp exemptions and BIPA are three trends to watch in Pritzker’s Illinois

Special interrogatories, workers’ comp exemptions and BIPA are three trends to watch in Pritzker’s Illinois - Photo by Lisa Predko

By Tequia Burt
Chicago Lawyer correspondent

Though Gov. Bruce Rauner was thwarted in his efforts to push damage award caps and tort reform, at least civil defense attorneys in Illinois rested easy during Rauner’s four-year tenure, knowing he would not actively work against them. But now that Democrat J.B. Pritzker has been elected governor, what is the defense bar expecting?“The ink isn’t even dry on Pritzker’s swearing-in papers, but we’ve seen a number of bills introduced in the House and in the Senate that are problematic, not only for the business community, but also for the defense attorneys that defend them,” said Brad Nahrstadt, president of the Illinois Association of Defense Trial Counsel (IDC) and partner at Lipe Lyons Murphy Nahrstadt & Pontikis.

Others like Bob Winston, a partner at Brady, Connolly and Masuda who has handled civil litigation matters for about 25 years, are taking a more measured, wait-and-see attitude to the election of the Democratic governor.

“We definitely expect a more liberal approach, but we’ve heard on the defense side that he is reaching across the aisle,” he said. “He has business support, which he needs to move his agenda forward. He doesn’t want to disturb that relationship, so we’re not looking for drastic changes.”

John Eggum, partner at Foran Glennon and vice chair of the defense association’s Legislative Committee, added that much of Pritzker’s agenda does not target areas that would affect the work of defense attorneys.

“The governor’s initiatives have not been very focused on the Judiciary Committees or the legislation that the Judiciary Committees are considering or might consider,” he said. “Pritzker has other priorities and campaigned on issues such as minimum wage and changes to the income tax structure — not really issues we’re concerned about.”

Rather than worrying about the governor, civil defense attorneys should be paying attention to the complete Democratic control of the General Assembly, according to Pat Eckler, partner at Pretzel & Stouffer and chair of the association’s Legislative Committee.

“For us, it’s less about the election of Pritzker and more about the supermajorities in the Senate and the House,” he said. “Even if Pritzker doesn’t want to do what the Senate and the House want to do, they can override anything he might veto. Pritzker will sign what they send him, I expect, but even if he didn’t, even if Rauner had been re-elected, they would be able to override his vetoes because they have super majorities in both houses.”

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Originally published in April 2019 in Chicago Lawyer

Right to repair

New exemptions will allow owners to repair everything from iPhones to tractors — without going to jail

New exemptions will allow owners to repair everything from iPhones to tractors — without going to jail

By Tequia Burt
Chicago Lawyer correspondent

Nicholas Percoco, an information security expert and co-founder of THOTCON, an annual nonprofit hacking conference based in Chicago, said that, as a hacker, he welcomes recent changes to the Digital Millennium Copyright Act, or DMCA, that could keep him out of prison.

“DMCA protects the manufacturers, but it really didn’t protect consumers or, especially in my world, did not protect the researchers,” he said. “Before these recent expansions, if you had a passion for doing security research and finding flaws in systems, you could step on the wrong toes and find yourself in jail.”

Last October, the Library of Congress and the U.S. Copyright Office expanded exemptions to the act that lets consumers and independent repair experts “jailbreak” their electronic devices to repair or maintain them. These exemptions to copyright law — which will apply to smartphones, tractors, cars and smart home appliances — enables owners to hack the software embedded on their devices without getting into legal trouble.

“This new ruling means you can’t block people from fixing electronics that they own,” said Nathan Proctor, director of the Campaign for the Right to Repair at consumer-rights organization US PIRG.

Advocates in the “right to repair” movement want people to have the ability to more easily maintain and repair their devices.

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Originally published in February 2019 in Chicago Lawyer

Approaching the bench

Exploring the ‘symbiotic relationship’ between lawmakers and the judiciary

Exploring the ‘symbiotic relationship’ between lawmakers and the judiciary

By Tequia Burt
Chicago Lawyer Correspondent

Illinois lawmakers generally emphasize the strict separation of powers between the judiciary and General Assembly.

“The relationship between us and the courts is arm’s length; it’s respectful and we recognize that we are co-equal branches of government,” said House Minority Leader Jim Durkin, R-Western Springs. “But their job is to rule on the laws and determine whether or not they abide with our constitution and nothing more.”

However, cooperation between the courts and lawmakers can be essential to pushing forward key policy and legislation in the state of Illinois, according to other lawmakers and experts.

“On the whole, there’s not enough interplay between the courts and lawmakers,” said former state Rep. Scott R. Drury, D-Highwood. “I’m not saying that the court should dictate what we do, and we certainly shouldn’t dictate to the courts how they should interpret our laws. But there is a symbiotic relationship, obviously, between the judicial branch and the legislative branch. And to the extent that there could be more lockstep cooperation, I think it would help everybody in the long run.”

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Originally published in January 2019 in Chicago Lawyer

Accruing interest

Will the states step up as the federal government rolls back consumer protections? Who’s going to regulate fintech? And what, under Trump, is a bank? A look at the trends affecting banking, financial and tax law

Will the states step up as the federal government rolls back consumer protections? Who’s going to regulate fintech? And what, under Trump, is a bank? A look at the trends affecting banking, financial and tax law

By Tequia Burt
Chicago Lawyer correspondent

As the Trump administration continues to loosen federal regulatory oversight, in particular those that protect consumers, what should banking and finance legal professionals be paying attention to?

Here are three areas to keep an eye on as regulatory uncertainty shows every sign of being an ongoing challenge for the banking and finance industry.

How will states react to the federal rollback of regulatory enforcement?

After he was appointed head of the Consumer Financial Protection Bureau last November, Mick Mulvaney made clear his goal was to “dramatically” shift the agency’s priorities.

“Anybody who thinks a Trump administration’s CFPB is going to be the same as an Obama administration CFPB is being naïve. Elections have consequences,” Mulvaney said at a news conference on his first day on the job.

An Obama-era consumer watchdog agency created in the wake of the financial crisis as part of the 2010 Dodd-Frank Act, the CFPB functions as one of the federal government’s main financial services regulators. The agency protects consumers by making sure financial companies are following the law; collecting and responding to consumer complaints; enacting protections to ensure consumers are treated fairly; and promoting financial transparency.

The CFPB has supervisory authority over banks, thrifts and credit unions with assets of more than $10 billion as well as their affiliates. Additionally, the agency has supervisory authority over nonbank mortgage originators and servicers, payday lenders and private student lenders of all sizes. During its seven-year history, the CFPB has taken on everything from the prepaid card industry to the mortgage servicing business.

During his tenure Mulvaney has moved to undermine the agency, including making a budget request of zero dollars this year, and has continually urged Congress to weaken the CFPB. The Trump administration has made a number of moves to diminish the agency’s power, including stripping the CFPB’s Office of Fair Lending and Equal Opportunity of enforcement power. Previously, the office had forced payouts in several well-known cases, including settlements from lenders it alleged had systematically charged minorities higher interest rates.

So how will the states’ attorneys general respond to this rollback on a federal level? According to several legal experts, states, including Illinois, are poised to fill the gap.

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Originally published in November 2018 in Chicago Lawyer