Released in November 2012, A Resource Guide to the U.S. Foreign Corrupt Practices Act is the Department of Justice’s and Securities and Exchange Commission’s detailed compilation of information about the FCPA, its provisions, and enforcement. It is the product of extensive efforts by experts at DOJ and SEC, and has benefited from valuable input from the Departments of Commerce and State. It endeavors to provide helpful information to enterprises of all shapes and sizes – from small businesses doing their first transactions abroad to multi-national corporations with subsidiaries around the world. The Guide addresses a wide variety of topics, including who and what is covered by the FCPA’s anti-bribery and accounting provisions; the definition of a “foreign official”; what constitute proper and improper gifts, travel and entertainment expenses; the nature of facilitating payments; how successor liability applies in the mergers and acquisitions context; the hallmarks of an effective corporate compliance program; and the different types of civil and criminal resolutions available in the FCPA context. On these and other topics, the Guide takes a multi-faceted approach, setting forth in detail the statutory requirements while also providing insight into DOJ and SEC enforcement practices through hypotheticals, examples of enforcement actions and anonymized declinations, and summaries of applicable case law and DOJ opinion releases.

A free pdf version of the Guide is available here.

A hardcopy, bound version of the Guide can be purchased directly from the U.S. Government Printing Office here.

Age 0-23: The so-called Kiddie Tax rules can potentially apply to your child’s (or grandchild’s) investment income until the year he or she reaches age 24. Specifically, a child’s investment income in excess of the applicable annual threshold is taxed at the parent’s marginal federal income tax rates (typically 15% on long-term capital gains and dividends and up to 35% on ordinary income). For 2012, the investment income threshold is $1,900 (same as for 2011). A child’s investment income below the threshold is taxed at very favorable rates (typically 0% on long-term capital gains and dividends and only 10% or 15% on ordinary income). Note that between ages 19 and 23, the Kiddie Tax is only an issue if the child is a student. For the year the child turns age 24 and for all subsequent years, the Kiddie Tax ceases to be a threat.

Age 18 or 21: A custodial account set up for a minor child comes under the child’s control when he or she reaches the age of majority under applicable state law (usually age 18 or 21). If there’s a significant amount of money in the custodial account, this issue can be a big deal. Depending on the child’s maturity level and dependability, you may or may not want to take steps to ensure that the money in the custodial account is used for expenditures you approve of (like college costs).

Age 30: If you set up a Coverdell Education Savings Account (CESA) for a child (or grandchild), it must be liquidated within 30 days after he or she turns 30 years old. To the extent earnings included in a distribution are not used for qualified higher education expenses, they are subject to federal income tax plus a 10% penalty tax. Alternatively, the CESA balance can be rolled over tax-free into another CESA set up for a younger family member.

Age 50: If you’re age 50 or older as of the end of the year, you can make an additional catch-up contribution to your 401(k) plan (up to $5,500 for 2012), Section 403(b) plan (up to $5,500 for 2011), Section 457 plan (up to $5,500 for 2012), or SIMPLE plan (up to $2,500 for 2012), assuming the plan permits catch-up contributions. You can also make an additional catch-up contribution (up to $1,000 for 2012) to your traditional or Roth IRA (the deadline for making IRA catch-up contributions for the 2012 tax year is 4/15/13).

Age 55: If you permanently leave your job for any reason, you can receive distributions from the former employer’s qualified retirement plan(s) without being hit with the 10% premature withdrawal penalty tax. This is an exception to the general rule that the taxable portion of qualified retirement plan distributions received before age 59½ are hit with the 10% penalty tax.

Age 59½: You can receive distributions from all types of tax-favored retirement plans and accounts (IRAs, 401(k) accounts, pensions, and the like) and from tax-deferred annuities without being hit with the 10% premature withdrawal penalty tax. Before age 59½, the 10% penalty tax will hit the taxable portion of distributions unless an exception to the penalty tax applies.

Age 62: You can choose to start receiving Social Security retirement benefits. However, your benefits will be lower than if you wait until reaching full retirement age, which is age 66 for those born between 1943 and 1954. If you also work before reaching full retirement age, your 2011 Social Security retirement benefits will be further reduced if your income from working exceeds $14,1640 for 2012.

Age 66: You can start receiving full Social Security retirement benefits at age 66 if you were born in 1943-1954. You won’t lose any benefits if you work in years after the year you reach age 66, regardless of how much money you make in those years. However if you will reach age 66 this year, your 2012 benefits will be reduced if this year’s earnings exceed $38,880.

Age 70: You can choose to postpone receiving Social Security retirement benefits until you reach age 70. If you make this choice, your benefits will be higher than if you start earlier.

Age 70½: You generally must begin taking annual Required Minimum Distributions (RMDs) from tax-favored retirement accounts (traditional IRAs, SEP accounts, 401(k) accounts, and the like) and pay the resulting income taxes. However, you need not take any RMDs from Roth IRAs set up in your name. The initial RMD is for the year you turn 70½, but you can postpone taking that one until as late as April 1 of the following year. If you chose that option, however, you must take two RMDs in that year: one by the April 1deadline (the RMD for the previous year) plus another by December 31 (the RMD for the current year). For each subsequent year, you must take another RMD by December 31. There’s one more exception: If you’re still working after reaching age 70½ and you don’t own over 5% of the employer, you can postpone taking any RMDs from the employer’s plan(s) until after you’ve actually retired.

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Please contact us – when it’s safe – if you need legal or business assistance following the Superstorm.

Those of you who may need assistance in the form of disaster loans can find information at http://sba.gov:

 SBA provides low interest disaster loans to homeowners, renters, businesses of all sizes and private, nonprofit organizations to repair or replace real estate, personal property, machinery & equipment, inventory and business assets that have been damaged or destroyed in a declared disaster.

SBA now offers you the option of filing your home and business disaster loan applications through the Electronic Loan Application (ELA).

• Disaster Center Offices

  SBA has disaster offices located strategically around the country. Learn more about and/or contact these offices.

• Types of Disaster Loans

  Through its Office of Disaster Assistance (ODA), SBA provides low-interest, long-term loans for physical and economic damage caused by a declared disaster. SBA offers home and personal property loans, business physical disaster loans, and …

• Disaster Loan Fact Sheets

  Key Points about Disaster Loans

• Applying For A Disaster Loan
  SBA now offers you the option of filing your home and business disaster loan applications through the Electronic Loan Application (ELA). You also have the option of submitting your application via mail. You may also …
• Current Disaster Declarations
  SBA provides low interest disaster loans to homeowners, renters, businesses of all sizes and private, nonprofit organizations to repair or replace real estate, personal property, machinery & equipment, inventory and business …
• Disaster Loans Use of Proceeds
  The SBA has specific guidelines regarding how the proceeds of such loans may be used. Disaster loans are designed to help you and your business weather an event which has caused either or both of the following: physical damage to …
• Disaster Policies and Procedures
  For more information regarding Disaster Loan Program policies and procedures, please see the links below. SBA Disaster Recovery Plan  Code of Federal Regulations – Disaster Loan Program SOP 50 30 (7) …
• Disaster Loan Payments
  There are several ways you can make a payment on your disaster loan – by phone, by mail, and online. Payment by Phone To make a payment, contact the SBA Customer Service Center toll-free at 1-800-490-2498 or 1-800-659-2955 …
• Employment with SBA’s Office of Disaster Assistance
  If you are interested in seeking temporary full-time employment, please consider joining the SBA Disaster Program. Temporary Full-Time Employment The U. S. Small Business Administration (SBA) is the Federal Government’s …
• 2012 Drought Disaster Assistance
  Small, nonfarm businesses, small agricultural cooperatives, small businesses engaged in aquaculture and most private, nonprofit organizations of any size that were affected by the 2012 Drought season,  may qualify for Economic …
• Additional Resources
  The links below point to websites created and maintained by other organizations that may be of interest to you. SBA does not necessarily endorse the views expressed on these sites, and does not guarantee the accuracy or …
• For the Media
  The following links serve as resources to print, broadcast and electronic media seeking information about SBA’s disaster assistance program. For more specific questions, contact one of the SBA Communications Departments …

The truth is that patents and trade secrets have advantages and disadvantages, even if having a patent sounds “sexier”. The best method depends on the specific case – and both methods are intrinsically different.

What is a Patent? A patent is a limited monopoly granted by the government, which excludes others from manufacturing, using, or selling an invention for a certain period, in exchange for public disclosure of the invention. Essentially, in return for letting everyone know how something works, no one else can make, sell, or use it for a set time period.

What is a Trade Secret? A trade secret, on the other hand, does not require any application process or public disclosure, but nor does it provide a monopoly. Instead, so long as the owner of a trade secret takes reasonable measures to keep the information secret, third parties are prohibited from unauthorized use or misappropriation of the secret. Usually that means one can’t disclose the information in violation of a NDA or acquire it from one who did.

Truth be told, most patents start out as trade secrets. Most inventors, whether companies or individuals, don’t run down the street shouting “EUREKA” anymore – they keep their idea secret. Somewhere along the way, however, they decide to seek a patent (and publicize it, like Apple) or keep it a secret forever (like Coca-Cola).

Pro-Patent:

• Is the Invention Easy to Develop Independently or Reverse Engineer? Trade secret law does not prohibit third parties from developing secret information independently or learning it through reverse engineering. Coca-Cola’s formula may be best as a trade secret, but patent protection may be preferable for mechanical or electronic products that can be more easily taken apart and figured out. Sadly, with trade secrets, a competitor who develops the same invention independently or through reverse engineering may then patent the invention and require you to license your own invention – another point in favor of patents.
• Is The Information Hard to Protect and Secure? If there are only a few people involved, all of whom first sign NDAs, and otherwise protect the invention, trade secret protection may work. The more chefs in the kitchen, however (suppliers, employees, customers, etc.), the risk of unauthorized increases, making patent protection may be more appropriate.
• Is The Information Subject to Ironic Disclosure? The “Ironic Disclosure” is common in misappropriation of trade secret lawsuits. Apple learned this the hard way in its battle with Samsung – often to protect a trade secret from misappropriation, the plaintiff may be required to publicly disclose the secrets in the lawsuit in order to enforce them, ensuring that the information will no longer be secret and will lose its protected status. Ironic Disclosure can’t occur with patents.
• Is The Idea Even Patentable? If Not… Patents have to be (in the most simplistic terms) (1) New, (2) Useful, and (3) Non-Obvious. If the secret doesn’t qualify under those rules, there’s no patentability – the only method for protecting it is as a Trade Secret.
• Is The Invention Short Lived? If the information is only going to be useful for a short while, and will only have monetary value for a short while, Trade Secrets make more sense. Patents take a long time to be issued; Trade Secrets are instantaneous.
• On The Other Hand, Is The Invention Very Long-Lived? Patent protection lasts twenty (20) years. That’s it. After that, everyone can use your instructions to make your invention. Trade Secrets are forever (or until they’re disclosed). Coca-Cola has protected its formula (a Trade Secret) for over a century; KFC has for nearly a century.
• Is the Cost of a Patent Prohibitive? At levinegerba || attorneys, we’ve done our best to keep costs low – including for our patent drafting and research services – but obtaining a U.S. patent may cost more than $10,000 (and can be way more, depending on complexity and type).   Obtaining a US patent may cost $10,000 – $20,000. Worldwide patent protection costs significantly more, as there’s a lot of additional work to be done. There are other maintenance and security costs as well, over time. On the other hand, a Trade Secret is usually much less expensive – just make sure you’ve put appropriate security and confidentiality measures into place.
• Will It Be Hard to Detect Unauthorized Use? If it will likely be difficult detecting unauthorized use of the information (e.g., it relates to internal business methods as opposed to finished goods) it may be less prudent to publicly disclose the invention in a patent application than to protect it as a trade secret.

Pro-Trade Secret

• Is The Idea Even Patentable? If Not… Patents have to be (in the most simplistic terms) (1) New, (2) Useful, and (3) Non-Obvious. If the secret doesn’t qualify under those rules, there’s no patentability – the only method for protecting it is as a Trade Secret.
• Is The Invention Short Lived? If the information is only going to be useful for a short while, and will only have monetary value for a short while, Trade Secrets make more sense. Patents take a long time to be issued; Trade Secrets are instantaneous.
• On The Other Hand, Is The Invention Very Long-Lived? Patent protection lasts twenty (20) years. That’s it. After that, everyone can use your instructions to make your invention. Trade Secrets are forever (or until they’re disclosed). Coca-Cola has protected its formula (a Trade Secret) for over a century; KFC has for nearly a century.
• Is the Cost of a Patent Prohibitive? At levinegerba || attorneys, we’ve done our best to keep costs low – including for our patent drafting and research services – but obtaining a U.S. patent may cost more than $10,000 (and can be way more, depending on complexity and type).   Obtaining a US patent may cost $10,000 – $20,000. Worldwide patent protection costs significantly more, as there’s a lot of additional work to be done. There are other maintenance and security costs as well, over time. On the other hand, a Trade Secret is usually much less expensive – just make sure you’ve put appropriate security and confidentiality measures into place.
• Will It Be Hard to Detect Unauthorized Use? If it will likely be difficult detecting unauthorized use of the information (e.g., it relates to internal business methods as opposed to finished goods) it may be less prudent to publicly disclose the invention in a patent application than to protect it as a trade secret.

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Full Story

“disclosure mechanism that websites can customize to succinctly tell consumers what kind of data they are collecting and how they are using it.”

Read More at the Washington Post