The Practical

Lawyervolume 62 | number 5 | october 2016

Published by American Law InstituteContinuing Legal Education six times a year

If a Whistle Blows In-House, Does it Still Make a Sound? Issues Regarding Internal Whistleblowers under Dodd-Frank (Part 2)

Responding to Security Breaches

Inhalants: What To Know About the Science and the Legal Implications

A Sample Complaint for Benefits Discrimination in Gender Dysphoria Cases

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The Grammatical Lawyer — Tips on Converting Legalese into Plain Language (Part 2)

The Web-Wise Lawyer — Finances on the Web: Robo Advisors

Practical Success — Practical Tips on Getting the Opportunity and Making Industry Publications

The Balanced Lawyer — Opportune Times for Self-Renewal

THE PRAC

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L. 62 NO

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TOBER 2016 TPL 1610

The result of nearly a decade of work by eminent scholars, judges, and practicing lawyers, this new volume clarifies employment law today.

This publication provides concise and clear rules and analysis on issues specific to the employment relationship, including contracts, termination, compensation, benefits, tort liability, wrongful discharge in violation of public policy, defamation, wrongful interference, misrepresentation, autonomy, privacy, employee obligations, restrictive covenants, and remedies.

To purchase the Restatement visit www.ali.org.

The American Law Institute Introduces Restatement of the Law Employment Law

If a Whistle Blows In-House, Does it Still Make a Sound? Issues Regarding Internal Whistleblowers under Dodd-Frank (Part 2)Amelia Toy Rudolph 22

Part 1 of this article by Amanda Toy Rudolph discussed the background of the Dodd-Frank whistleblower program, the interplay of the Dodd-Frank whistleblower program and company internal compliance processes, and several topics related to internal whistleblowers and applicability of Dodd-Frank anti-retaliation protection. This Part will discuss three areas implicating the balance between internal reporting and external whistleblowing: (1) whether individuals who report potential violations of law internally, but not to the SEC, may assert claims under the Dodd-Frank anti-retaliation provision; (2) the extent to which companies may use or require confidentiality agreements of their employees in aid of internal investigations; and (3) the extent to which individuals responsible for internal audit or compliance-related functions within a company may avail themselves of the Dodd-Frank whistleblower program.

Responding to Security BreachesKirk J. Nahra and Edward Brown 40

Security breaches remain big news, virtually every day. Executives and managers understand it is a question of “when,” not “if,” their companies will be targeted. Companies in all industries, as well as a host of other organizations, are affected. Hackers are engaged in ever more brazen schemes to gather personal and proprietary information for a variety of motives. This article by Kirk J. Nahra and Edward Brown discusses the essentials: identifying the problem and the insurance, involving he insurer, engaging counsel, determining the cause of the problem, evaluating the harm, taking the right steps—and more.

Inhalants: What To Know About the Science and the Legal ImplicationsSamuel D. Hodge and Connor T. Lacey 46

A great deal of publicity is devoted to the dangerous of drug and alcohol abuse while thousands of common household and industrial products are abused with little fanfare. Inhaling or sniffing glue, liquid cement, lighter fluid or air freshener seems innocuous but they can be more dangerous than street drugs with life altering consequences. This article by Samuel D. Hodge and Connor T. Lacey discusses the medical

implications of huffing and other similar practices.

A Sample Complaint for Benefits Discrimination in Gender Dysphoria Cases Julie Chovanes 56

The relationship between gender identity and gender assignment can have serious implications for benefits. This article by Julie Chovanes presents a model complaint that addresses detailed descriptions related to jurisdiction, identification of the parties, pertinent Constitutional provisions, Federal statutes and State regulations, a descriptions of facts (including explanation of gender dysphoria (GD)), and Counts related to Equal Protection, violations of the Supremacy Clause, Medicaid violations.

The Grammatical Lawyer — Tips on Converting Legalese into Plain Language (Part 2),

by Michael G. Walsh 7

The Web-Wise Lawyer — Finance on the Web: Robo Advisors, by Frank J. Cavaliere 11

Practical Success — Practical Tips on Getting the Opportunity and Making Industry Publications, by Cordell Parvin 15

The Balanced Lawyer — Opportune Times for Self-Renewal, by Jeff Davidson 19

The Practical

Lawyer volume 62 | number 5 | october 2016

Meet the Editorial Board of The Practical Lawyer

Cindy J. Chernuchin is counsel in the Corporate and Financial Services Department of Willkie Farr & Gallager, LLP, with experience in secured financing. She represents borrowers, issuers, banks, institutional lenders, and trustees in a wide array of financings, including asset-based lending, high-yield bonds, project financing, acquisition financing, debtor-in-possession financing, equipment financing, industrial development bonds, telecom financing, mutual fund financing, mezzanine financing and workouts. Cindy is the primary resource for firm clients and attorneys on all legal issues involving Article 8 and 9 of the Uniform Commercial Code including structuring secured transactions, reviewing and analyzing collateral packages, negotiation of opinions regarding creation and perfection of liens on real estate, property subject to the UCC and property subject to other statutes (including Cape Town) and collateral documents (including the underlying documents such as operating agreements), performing legal audits to determine status of secured party’s security interest and advising on the exercise of remedies under the UCC (including foreclosure sales and strict foreclosures). Cindy’s banking and finance experience is recognized by New York Super Lawyers (2010, 2011 and 2012) and 2012 Top Women Attorneys in NY Metro Area.

Sandra B. Durant is the principal of Durant & Associates, in New York City. Previously she was a partner in Cohn, Glickstein, Lurie Ostrin, Lubell & Lubell. Sandra represents both unions, private employees and companies. In the private sector, her practice includes negotiation of executive employment and severance agreements for both American and foreign executive employees working domestically and abroad, and union members regarding fair representation. She has also written for The Practical Lawyer, GI Jobs/Veteran Journal, and Crain’s New York about Labor Law issues. She counsels corporations and law firms about how to create and maintain a diverse workforce. As an Adjunct Faculty member, she has taught in the area of Diversity and Discrimination Law at New York and CUNY Law Schools. She has served on the Board of Directors of the National Bar Association and Co- Chair of its Committee on the Judiciary. Additionally she has been a member of both the Civil Rights and the Judiciary Committees of the Association of the Bar of the City of New York and the Legislative Priorities Committee of the New York State Bar Association. Currently she is a member of the Board of Directors of the Lawyers Committee for Civil Rights under Law. She received her undergraduate Degree Phi Beta Kappa from the University of Denver and her Law Degree with Honors from Columbia University School of Law.

Pedro Freyre is a partner with in Akerman LLP, in Miami. As chair of Akerman’s International Practice, he focuses extensively on inbound foreign investment in the U.S. and outbound U.S. investment in Latin America. His work includes project construction and financing involving governmental and private entities in Latin America, Europe, and Africa, acquisitions and dispositions, environmental regulation, international transactions, cross-border due diligence, insurance regulation, and corporate representation. He regularly provides compliance counseling and training in connection with the Foreign Corrupt Practices Act (FCPA). Additionally, Pedro is a nationally recognized authority on the U.S. Embargo on Cuba and has been extensively quoted in the national media regarding the evolving U.S. policies toward Cuba. He advises U.S.-based companies on the types of business transactions that are legal in Cuba under the U.S. embargo, helps U.S. entities that are engaged in authorized activities in connection with entering the Cuban market, and advises foreign entities that are involved in Cuba business on implications with U.S. law. Pedro is a Lecturer at Law at Columbia University School of Law, where he teaches a seminar on Cuba.

Françoise Gilbert is a partner at Greenberg Traurig, and practices in the firm’s Silicon Valley office, located in East Palo Alto, California, where she advises public companies, emerging technology businesses and non-profit organizations, on the entire spectrum of domestic and international privacy and cyber security issues legal issues. Francoise has focused on information privacy and security for more than 25 years; she regularly deals with compliance challenges raised by cloud computing, connected objects, smart cities, big data, mobile applications, wearable devices, social media, and other cutting-edge developments. She is internationally recognized as a thought leader and expert in data privacy and cyber security. In 2015, she was identified as a “Cybersecurity and Privacy Trailblazer” by the National Law Journal. In 2014, she was selected as “San Francisco Lawyer of the Year” by Best Lawyers for her work in information privacy and security. She has been listed in Chambers USA and Chambers Global since 2008, Best Lawyers in America since 2007, and Who’s Who in Ecommerce and Internet Law since 1998, as one of the leading privacy and cybersecurity attorneys. She is accredited as a Certified Information Privacy Manager (CIPM) and a Certified Information Privacy Professional (CIPP/US, CIPP/E) by the International Association of Privacy Professionals (IAPP).

Lawrence P. Katzenstein is a partner with Thompson Coburn LLP, in St. Louis. He is a nationally known authority on estate planning and exempt organizations, and a frequent speaker around the country to professional groups. He divides his practice between representation of wealthy individuals in estate and philanthropic planning and serving as outside counsel to exempt organizations nationwide. He is a frequent speaker on professional programs, appears annually on several American Law Institute programs, and has spoken at many other national tax institutes, including the Notre Dame Tax Institute, the University of Miami Heckerling Estate Planning Institute and the Southern Federal Tax Institute. Mr. Katzenstein has served as an adjunct professor at the Washington University School of Law where he has taught both estate and gift taxation and fiduciary income taxation. A former chair of the American Bar Association Tax Section Fiduciary Income Tax Committee, he is active in several Tax Section and American College of Trust and Estate Counsel (ACTEC) charitable planning committees. He is listed in Best Lawyers in America® 2015 (Copyright 2014 by Woodward/White, Inc., of Aiken, S.C.) in the field of Trusts and Estates. Mr. Katzenstein was named the St. Louis Non-Profit/Charities Lawyer of the Year in 2011 and 2015, and the St. Louis Trusts and Estates Lawyer of the Year in 2010 and 2013 by Best Lawyers in America®. He was nationally ranked in the 2009-2015 editions of Chambers USA for Wealth Management. He has served as a member of the advisory board of the National Center on Philanthropy and the Law at New York University. Mr. Katzenstein is also the creator of Tiger Tables actuarial software, which is widely used around the country by tax lawyers and accountants as well as the Internal Revenue Service. He received his undergraduate degree from Washington University in St. Louis and his law degree from Harvard.

Devika Kewalramani is a partner and co-chair of Moses & Singer’s Legal Ethics & Law Firm Practice which advises law firms, lawyers and legal departments on ethical and legal aspects of law practice. She also currently serves as the firm’s general counsel. Devika represents law firms and attorneys in legal ethics, professional discipline, law firm risk management, lawyer licensing and admissions matters, including escrow issues, conflicts of interest, business transactions with clients and non-lawyers, multijurisdictional practice, disqualification, lateral transition, law firm structuring and break-ups, ADR ethics, reporting/disclosure issues, attorney advertising, law firm cyber security issues, social media use, legal fee disputes, and other professional responsibility issues. She conducts ethics and risk management audits for law firm and legal department clients. A frequent lecturer, panelist and author on legal ethics, Devika speaks to law firms, corporate legal departments, bar associations and other professional organizations on a variety of legal ethics topics. The editor of New York State Bar Association’s Journal magazine recognized Devika as author of one of the best articles of 2010: “Up Close and Professional With New York’s Engagement Letter Rules” (September 2010). Her article, “Demystifying ESQrow Ethics” was featured on the front page of the New York State Bar Association Journal’s May 2013 edition. Devika is a faculty member of the Practising Law Institute and of Lawline.com. Devika is Chair of the Committee on Professional Discipline of the New York City Bar Association. In 2014 and 2015, Devika achieved Super Lawyer status in the Metro Edition of New York Super Lawyers®. She was appointed as a member of the New York Commission on Statewide Attorney Discipline in 2015 and served as a co-chair of its Subcommittee on Transparency and Access.

Rajiv S. Khanna is a member of the Virginia and DC Bars and the principal of the Law Offices of Rajiv S. Khanna, PC. Since 1993, his firm has focused our practice on employment and business-based immigration and related administrative and federal litigation. They represent individuals and businesses from every major city in USA and internationally. Our immigration practice includes transactional work (immigration/visa petitions, etc.), compliance consultations, defending government audits and related litigation. The firm employs forty people and has offices located in Arlington and Staunton in Virginia. Rajiv has been providing educational seminars for over ten years with emphasis on practical approaches for compliance with immigration laws. The firm’s web site (http://www.immigration.com) is the oldest portal and compendium of immigration law. Rajiv’s background includes corporate law, commercial law, constitutional law, business law, government contracts, private international law, and RICO and Antitrust litigation and litigation management. Because of this diversity, he possesses experience and insight from various disciplines that equips him to provide a unique insight into immigration law as a multi-faceted discipline. As of May 2009, Rajiv has provided advice and representation in over 50,000 immigration cases and over 130 investigations.

Joy Miyasaki Joy Miyasaki is the principal of Miyasaki LLC, a private client law firm in Honolulu, Hawaii. She practices in the areas of tax and estate planning; asset protection; charitable giving and tax-exempt organizations; probate, estate and trust administration; and tax matters. She was a trial attorney with the IRS Office of Chief Counsel in New Jersey and a partner with Bergman, Horowitz & Reynolds, a private client law firm in Connecticut and New York (now Withers Bergman). She is currently an adjunct faculty member at the University of Hawaii Richardson School of Law, a Fellow of the American College of Trust and Estate Counsel, a Member of the Disciplinary Board of the Hawaii Supreme Court, and Chair of the Policy Advisory Board for Elder Affairs of the State of Hawaii. She has served as President of the Hawaii Estate Planning Council, Hawaii

Women’s Legal Foundation and Hawaii Women Lawyers. Her firm has received a 2016 U.S. News Best Lawyers “Best Law Firms” Tier 1 Metro ranking in the areas of Trusts & Estates and Tax Law. She is listed in The Best Lawyers in America© in the areas of Trusts & Estates, Tax Law, and Litigation and Controversy Tax. She was named Best Lawyers® 2015 Litigation and Controversy Tax “Lawyer of the Year” and 2012 Trusts and Estates “Lawyer of the Year” in Honolulu.

Lateef Mtima is a Professor of Law at the Howard University School of Law. After graduating with honors from Amherst College, Professor Mtima received his J.D. degree from Harvard Law School, where he was the co-founder and later editor-in-chief of the Harvard BlackLetter Journal. He is admitted to the New York and Pennsylvania bars and has practiced intellectual property, bankruptcy, and commercial law, including a decade in private practice with the international law firm of Coudert Brothers. Currently a member of the Advisory Council for the United States Court of Federal Claims, Professor Mtima has held the post of Distinguished Libra Visiting Scholar in Residence at the University of Maine School of Law, is a past President of the Giles S. Rich Inn of Court for the United States Court of Appeals for the Federal Circuit, and was a member of the founding Editorial Board for the American Bar Association intellectual property periodical Landslide. Professor Mtima is the Founder and Director of the Institute for Intellectual Property and Social Justice, an accredited Non-

governmental Organization Member of the World Intellectual Property Organization (WIPO).

Anita Ponder is a partner in the Chicago office of Seyfarth Shaw LLP in the Government Contracts Practice Group and she chairs the firm’s Government Contractors Business Forum for government contractors. Ms. Ponder represents major corporations, small and mid-sized businesses as well as government agencies. Her practice focuses on advising bidders/contractors and training their employees on government regulations, laws, policies and legislation; preparing responsive bid proposals, small business subcontracting plans, bid protests and equitable contract claims; drafting and negotiating contracts; resolving contract disputes; facilitating contract compliance, including assisting clients to meet contract participation goals for small businesses; representing contractors in compliance audits and suspension/debarment proceedings; and structuring teaming relationships between majority- and minority-

owned businesses. Ms. Ponder has delivered speeches on these issues to major corporations, business organizations, bar associations and government agencies throughout the country.

Norman M. Powell concentrates his practice on the structure and use of Delaware entities, and frequently provides third party legal opinions concerning such entities, security interests, and other applicable Delaware law. He speaks at conferences and seminars for the American Law Institute, the American Bar Association, the Delaware Secretary of State, various state bar associations and trade groups, financial institutions, and law firms. His work regularly appears in law journals and other periodicals including The Uniform Commercial Code Law Journal, The Business Lawyer, The Practical Real Estate Lawyer, and The Practical Lawyer. Mr. Powell is a Fellow (and Treasurer 2015-2017) of the American College of Commercial Finance Lawyers, and an elected Member of both the American Law Institute and the American Bar Foundation. He serves on the Editorial Boards of both The American Law Institute’s The Practical Lawyer and Thomson Reuters/West’s Uniform Commercial Code Law Journal. Mr. Powell is active in the American Bar Association’s Business Law Section, having chaired its Uniform Commercial Code Committee

(2012-2015) and currently serving as a member of its governing Council (2015-2019). He is an American Bar Association Advisor to both the Uniform Law Commission’s Committee on Series of Unincorporated Business Entities and its Permanent Editorial Board on the UCC. Mr. Powell is an adjunct professor at the Temple University James E. Beasley School of Law, where he teaches Secured Transactions. He has been listed in Chambers USA - America’s Leading Lawyers for Business, Corporate/M&A: Alternative Entities, since 2006, and has been Martindale-Hubbell Peer Review Rated AV since 2004.

ALI CLE (operating for many years as ALI-ABA) has a history of outreach to underrepresented groups in the legal community and is firmly committed to providing a welcoming environment and ensuring that the attorneys who speak and write for our organization represent the increasing diversity of our profession. We welcome suggestions for new speakers and authors to support the full participation of all of the talent in our profession.

The Practical Lawyer (ISSN 0032-6429) is published six times a year by ALI CLE. Publication office: 4025 Chestnut Street, Philadelphia, Pa. 19104-3099. Editorial — (215) 243-1604; circulation — (215) 243-1689. Publication dates: February, April, June, August, October, December Subscription rate: $75 a year A single issue is $35. Periodicals postage is paid at Philadelphia, Pa., and at additional entry office. POSTMASTER: Send address changes to The Practical Lawyer, 4025 Chestnut Street, Philadelphia, Pa. 19104-3099. Copyright © 2016 by The American Law Institute.

Nothing in this periodical should be considered as the rendering of legal advice. Nonlawyers should seek the advice of a licensed attorney in all legal matters. Readers should assure themselves that the material in this periodical is still current and applicable at the time it is read. Neither ALI CLE nor the authors can warrant that the material will continue to be accurate, nor do they warrant it to be completely free of errors when published. Readers should verify statements before relying on them. The materials in this periodical reflect the viewpoints of their authors and do not necessarily express the opinions of ALI CLE or its sponsors.