Greetings compliance friends! In the wake of excessive flooding brought about by the many recent tragic hurricanes, NCUA together with several other agencies have granted temporary exceptions to the current appraisal requirements in major disaster zones. Since we've received quite a few questions on this, I figured it would be a good opportunity to review the NCUA appraisal requirements and un-package this temporary exemption.
NCUA's appraisal requirements depend on the loan value and its terms. NCUA’s Rules and Regulations do not require a formal appraisal if the transaction is 250k or less. Generally, any loan with a transactional value of $25,500 or less requires only a “written valuation” that meets FIRREA requirements. A loan with a transactional value between $25,501 and $250,000 only requires a formal appraisal if it is a "higher-priced" mortgage loan; and all loans of $250,001 or more require an appraisal.
For transactions requiring an appraisal, the central requirement is that the appraisal must be "performed by a state certified or licensed appraiser." For transactions requiring a written valuation, it must "be performed by an individual having no direct or indirect interest in the property, and qualified and experienced to perform such estimates of value for the type and amount of credit being considered." 12 C.F.R. §722.3(d). The minimum requirements for written estimates of market value are addressed in Appendix B of the Interagency Appraisal and Evaluation Guidelines.
The regional director has granted a waiver from the appraisal requirement for a category of loans meeting the definition of a member business loan.
Appendix A to the Interagency Appraisal and Evaluation Guidelines, provides additional guidance on these exemptions and describes how institutions can comply with Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA).The guidance was joined by NCUA, and was attached to Letter to Credit Unions 2010-23.
As referenced in §722.3(f), if a loan is a second mortgage that is closed-end consumer credit secured by the consumer’s principal dwelling and qualifies as a higher-priced mortgage loan (HPML), it may require an appraisal under Regulation Z. §1026.35(c). An HPML is a closed-end secured residential loan "with an annual percentage rate that exceeds the average prime offer rate for a comparable transaction by a certain number of percentage points. §1026.35(c)(2) also provides an appraisal threshold exemption which is currently $25,500, along with additional exemptions to the appraisal rule for HPMLs. The threshold is set to increase to $26,000 on January 1, 2018. The CFPB official commentary discusses all these exemptions in further detail and emphasizes that although these types of transactions may be exempt from the CFPB's appraisal rule, the requirements under FIRREA and §722.3 still apply. Thus, an appraisal would be required for HPMLs between $25,500 and $250,000, and a written valuation conforming to the Interagency Appraisal and Evaluation Guidelines would be required for loans that do not require an appraisal under NCUA. An additional written appraisal for HPMLs may be required for recently acquired properties subject to certain conditions found in §1026.35(c)(4).
In summary, it appears any loan with a transactional value of $25,500 or less requires only a written valuation that conforms to Appendix B of the interagency guidance. A loan with a transactional value between $25,500 and $250,000 only requires a formal appraisal if it is a HPML. All loans carrying a value of $250,001 or more require an appraisal.
On October 16, 2017, NCUA, together with several other agencies, released a Letter to Credit Unions (17-CU-06) granting a temporary exemption to the FIRREA appraisal requirements in major disaster areas, as defined by the President. The exemption provides flexibility to credit unions with loans secured by real estate and located in the affected areas, including parts of Florida, Georgia, Puerto Rico, Texas, and the U.S. Virgin Islands. The exemptions will remain in effect for a three-year period from the date of the declaration.
The order specifically requires that the property involved was located within the major disaster area, there is a binding commitment to fund the transaction, the value of the real property supports the institution's decision to enter into the transaction, and the transaction must continue to be subject to review by management in the course of examinations of the institution.
This waiver is an attempt to ensure that any shortage of appraisers would not further delay the recovery process for these regions. We at NAFCU have been saddened to see the extent of the damage and loss of life and have compiled a list of resources to help credit unions in these disaster areas. Our thoughts and prayers go out to all those who have been affected.
Last week, NCUA joined an Interagency Advisory on the Availability of Appraisers. While the Advisory does not provide any additional guidance, it does seek to alert credit unions to existing potential solutions to problems with appraiser availability.
Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) requires NCUA to establish appraisal standards for all federally related transactions. Part 722 of NCUA's regulations provides these standards. Generally, the rules require the appraisal to be performed by a state-certified or state-licensed appraiser. Whether the appraiser needs to be certified or licensed depends on the type of transaction involved. The Interagency Appraisal and Evaluation Guidelines provide an overview of the applicable rules and guidance on developing an appraisal program, choosing an appraiser, and obtaining and reviewing appraisals.
As part of the Economic Growth and Regulatory Paperwork Reduction Act review, commenters raised concerns with the timeliness of obtaining an appraisal. The commenters attributed the issue to problems with the availability of state-certified and state-licensed appraisers. This seemed to be of particular concern in rural areas. The recent Advisory explains a credit union's options in the event a certified or licensed appraiser is not available. In certain situations, the FIRREA permits credit unions to use appraisers who have obtained a temporary practice permit or a temporary waiver instead of a state certificate or license. The Advisory explains both the permit and the waiver.
Temporary practice permits can allow an appraiser who is certified or licensed in State A to practice in State B without having to become certified or licensed in State B. Under 12 U.S.C. § 3351, each state appraiser certifying or licensing agency must temporarily recognize the certificate or license of another state in certain circumstances. The rule states that an agency in State B must temporarily recognize the certificate or license of State A if the property involved is part of a federally related transaction, the appraiser's activity in State B is temporary, and the appraiser registers with State B's certifying or licensing agency. Generally, appraisers are able to apply for a temporary practice permit through State B's agency. Each state's agency will determine the requirements for obtaining a temporary practice permit and any fees associated with doing so, but the rule prohibits the agency from imposing "excessive fees or burdensome requirements."
The rule also requires each state certifying or licensing agency to have a reciprocity policy in place. Under this policy, State B's agency will issue a certificate or license to an appraiser from State A if the licensing and certification program of State A complies with the rules of the FFIEC Appraisal Subcommittee, State A's certifying or licensing requirements meet or exceed the requirements of State B, and the appraiser holds a valid certification from State A.
Under 12 U.S.C. 3348(b), the Appraisal Subcommittee (ASC) may waive any certification or licensing requirement if a written determination is made that appraisals are being significantly delayed because of a shortage of state certified or licensed appraisers. The Advisory explains that a temporary waiver request can be made by a state appraiser certifying or licensing agency, a regulated credit union, or any other persons with a demonstrable interest in appraiser regulation. The FFIEC's regulations govern the process for requesting and obtaining a temporary waiver.
If the requester is a state agency, a specific plan for expeditiously alleviating the scarcity and delays.
The request can be to waive the requirements across the entire state or for a geographical political subdivision. The ASC will review the request and make a determination within forty-five days. The FFIEC must approve any determination to grant the waiver. If the waiver is granted, it will apply to all federally related transactions within the state or subdivision. The waiver will be effective only for the period specified by the ASC, however, the regulations permit the ASC to extend the period if needed. The ASC may also terminate the waiver before the end of the period if the delays cease to exist or the terms and conditions of the waiver are not being met.
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Final Rule, Parts 701 and 722 of NCUA’s Rules and Regulations, Appraisals.
Notice and Request for Comment, Economic Growth and Regulatory Paperwork Reduction Act Review.
2015 Corporate Stabilization Fund Quarterly Report.
Here we’ll just briefly discuss the new final rule regarding appraisals. The NCUA Board approved a new final rule to revise two of the agency’s regulations concerning appraisals. What’s changed? The final rule eliminates the now duplicative requirement for federal credit unions to make available a copy of the appraisal used in connection with a member’s application for a loan secured by a first lien on a dwelling to any requesting member/applicant. It also expands the current exemption for certain transactions involving an existing extension of credit. Under the expanded exemption, a federally insured credit union will be permitted to refinance or modify a real estate-related loan held by that federally insured credit union in a declining housing market, without having to obtain another appraisal, if there is no advancement of new monies or if there is adequate collateral protection even with the advancement of new monies. Finally, the rule also makes a minor technical amendment to the definition of the term “application.” The rule becomes effective 30 days after its publication in the Federal Register.
Chairman Matz welcomed the final rule as credit unions will be able to more easily refinance loans without encountering unnecessary administrative burden. She also noted that these changes will bring NCUA’s rules into parity with the other banking regulators.
NAFCU’s Regulatory Compliance School should be on every compliance professional’s “nice” list. Get comprehensive compliance training on what you need to know now, plus what’s coming up. Save $200 with code HOLIDAY when you register by January 9. Learn more.
Vienna. Here are a few photos from my recent vacation. Although it gets dark earlier in the day and is a little chilly and damp, Vienna is full of Christmas markets this time of year and with the lights, it is quite a charming city. I thoroughly enjoyed Vienna and thought I’d share a little of my experience there with you.
The Reisenrad (ferris wheel) at Prater from Stephansdom’s North Tower – so cold!
Riding the Resisenrad – It’s only about 4:30 in the afternoon!
Rauthauspark (town hall) Christmas Market – where you drink Gluhwein to keep warm!
My Sachertorte and Melange – vacationing is such hard work!
Last week, we blogged about the NCUA Board’s June meeting and promised to provide some more in-depth information regarding some of the proposed rules that the Board approved. Today, we will review the proposed changes to NCUA’s rules relating to appraisals, specifically those at 722.3(a)(5), Section 701.31(a)(1) & (c)(5) which are a result of NCUA’s annual review of one-third of its rules for possible regulatory modernization.
There have been no obvious and material changes in market conditions or the property’s physical attributes which would threaten the property’s adequacy as collateral for the loan.
Finally, as we noted last week, NCUA proposed to amend the definition of “application” in Section 701.31(a)(1) to simply cross-reference the definition in Regulation B.
NCUA Launches Interest Rate Risk Resource Page. Interest rate risk is a high priority at NCUA these days, and this topic is one of NCUA’s 2014 Supervisory Focus for exams. Last week, NCUA announced the creation of a webpage that aggregates the agency’s resources relating to interest rate risk. This includes a video as well as links to specific rules and Letters to Credit Unions.
I Don’t Like Mondays. Actually, I don’t know many people who think Mondays are great, but mine was particularly special! I started off at jury duty, but was not selected and sent home early. I was off to a good start! A large segment of a tree spontaneously fell onto our house this past weekend, so we arranged to have the entire tree removed. The tree removers came on Monday, and for the first time in the owner’s 15+ years of experience, the crane fell onto our house with its brand new roof! Luckily, no one was hurt and the tree remover had my roof repaired, good as new, within 24 hours.
Earlier this week, Steve mentioned NCUA’s Regulatory Alert on the Regulation B Appraisal Disclosure and Delivery Requirements. The alert summarizes requirements under the CFPB’s Equal Credit Opportunity Act (ECOA) Valuations Rule (effective January 18, 2014).
You must notify the applicant in writing within three business days of application of the right to receive a copy of any appraisal developed in connection with the application. Appendix C to the rule includes sample text for this disclosure.
If you have an application that was not originally going to be secured by a first lien on a dwelling and you later determine that it will be secured by a first lien on a dwelling, then you have three business days after you determine the change has occurred to notify the applicant about the right to receive appraisals.
When processing an application for a closed-end loan, you must deliver copies of appraisals and other written valuations “promptly upon completion,” or three business days before consummation, whichever is earlier.
When processing an application for an open-end loan, you must deliver copies of appraisals and other written valuations “promptly upon completion,” or three business days before account opening, whichever is earlier.
You cannot charge the applicant for fees for photocopying or to cover the cost of postage to mail copies of appraisals or other written valuations you provide. However, you can charge a reasonable fee to reimburse the cost of developing an appraisal or other written valuation, unless applicable federal5 or state law prohibits or otherwise restricts it. You cannot condition providing copies on payment of this fee.
Refer to the alert for complete details.
Regulatory Relief. In a letter sent to NCUA on Monday regarding the agency’s 2013 regulatory review, NAFCU General Counsel and Vice President of Regulatory Affairs Carrie Hunt raised numerous issues that deserve the agency’s immediate attention.
Related to today's blog post, one area addressed is the need for NCUA to update its appraisal regulations in light of the CFPB’s ECOA Valuations Rule. Currently, federal credit unions are exempt from the appraisal requirements of Regulation B, as current section 1002.14 contains an exemption from these requirements for credit unions subject to NCUA’s regulation section 701.31(c)(5) regarding the provision of appraisal copies.
"Starting on January 18, 2014, credit unions will be required by Regulation B to provide an applicant a copy of all appraisals and other written valuations developed in connection with an application for credit that is to be secured by a first lien on a dwelling. Unless NCUA section 701.31(c)(5) is amended, credit unions will also have a duty to make, at the request of the member, copies of appraisals used for that member’s real-estate related loan application available for up to 25 months, regardless of whether the credit is secured by a first lien on a dwelling.
In order to update NCUA regulations to reflect a new world where credit unions are under the rule of Regulation B starting January 18, 2014, NCUA should, at a minimum, change the scope of 701.31(c)(5) to include only subordinate lien loans that fall outside the scope of Regulation B's requirements. This would ensure that for all first lien loans on a dwelling, a member would receive an appraisal provided by the credit union pursuant to section 1002.14 as amended. For all subordinate lien loans, the member would still be able to request a copy of the appraisal from the credit union."
Click here to download NAFCU's comment letter.
Welcome back - we'll keep this nice and easy on your return from the holiday weekend.
Fraud Information Center. I was excited when I saw this mentioned in the Region I Report regarding fraud as I thought NCUA had developed a new way to inform credit unions of potential fraud.
"Take advantage of NCUA’s online Information Center (http://go.usa.gov/r9H4). This webpage includes an update of current fraudulent schemes being aimed at credit unions, contains details about the agency’s fraud hotline (all reports remain confidential), offers background on phishing schemes where email are purportedly coming from NCUA, links to suspicious activity report (SARs) forms and guidance, and connects credit unions with other resources readily available, including the FBI, U.S. Postal Service, and the President’s Identity Theft Task Force, to name a few." (emphasis added).
Unfortunately, the bolded language looks to be a landing page with past Fraud Alerts and Letters to Credit Unions. Hopefully, there is an update or futher enhancements going on behind the scenes as well.
Earlier this month, federal financial regulatory agencies including the CFPB and NCUA, issued a proposed rule to establish new appraisal requirements for higher-risk mortgage loans. The proposed revisions to Regulation Z would implement new TILA section 129H, added to TILA by Dodd-Frank section 1471. The CFPB’s press release on the proposed rule is available here.
Keep in mind that the CFPB has also issued a separate proposed rule on appraisals under Regulation B. That proposal would require mortgage lenders to provide home loan applicants with copies of written appraisals and other home value estimates developed in connection with the application. See our August 20th blog for more details on the Regulation B proposed rule on appraisals.
“Higher-risk mortgage loan.” Under the proposed rule, a “higher-risk mortgage loan” is generally defined as a closed-end consumer credit transaction secured by the consumer’s principal dwelling with an APR exceeding certain statutory thresholds. In general, loans would be “higher-risk mortgage loans” if the APR exceeds the average prime offer rate (APOR) by 1.5 percent for first-lien loans, 2.5 percent for first-lien jumbo loans, and 3.5 percent for subordinate lien loans. Sound familiar? These rate thresholds are similar to the rate triggers currently in Regulation Z for “higher-priced mortgage loans,” a category of loans to which special consumer protections apply under section 1026.35.
The creditor provides the consumer with a free copy of any written appraisals obtained for the transaction at least three (3) business days before closing.
The consumer is acquiring the home for a higher price than the seller paid.
The additional written appraisal, from a different licensed or certified appraiser, generally must include an analysis of the difference in sale prices (i.e., the sale price paid by the seller and the acquisition price of the property as set forth in the consumer’s purchase agreement), changes in market conditions, and any improvements made to the property between the date of the previous sale and the current sale. This requirement is designed to address fraudulent property flipping by seeking to ensure that the value of the property being used as collateral for the loan legitimately increased.
For complete details, the proposed rule is available here.
Last Wednesday, the Consumer Financial Protection Bureau (CFPB) released a proposed rule that would amend the Equal Credit Opportunity Act (ECOA)’s Regulation B by requiring mortgage lenders to provide home loan applicants with copies of written appraisals and other home value estimates developed in connection with the application. The rule would ensure that consumers receive information prior to closing about how the property’s value was determined.
Under the proposal, consumers would receive disclosures of their right to receive a free copy of appraisal reports and home value estimates within three days of applying for a loan. Creditors would then be required to provide the reports to consumers as promptly as possible, but in no case later than three days before closing, regardless of whether credit is extended, denied, incomplete or withdrawn.
Also under the proposal, creditors could still charge reasonable fees associated with conducting appraisals and home value estimates. However, the rule prohibits creditors from charging consumer fees for obtaining the reports. This is a change from current practices where consumers must request an appraisal report from the creditor and may be charged a fee to obtain the report.
The CFPB plans to finalize this rule in January 2013. For more details on the proposal, you can view the proposal here and a summary of the CFPB’s proposal here.
"(b) Credit unions. A creditor that is subject to the regulations of the National Credit Union Administration on making copies of appraisal reports available is not subject to this section."
Federal credit unions have historically been able to follow 12 CFR 701.31(c)(5) of NCUA's regulations but the CFPB's proposal would force CUs to comply with Regulation B for appraisals - including the new requirements.
In late June, we blogged about the CFPB's second round of the Know Before You Owe project to combine the TILA and RESPA disclosures. If you didn't have a chance to look at the prototypes at that time, you can still review the disclosures and send NAFCU any comments that you might have. This could be design-related or actual disclosure issues that the new forms don't address. Kick the tires, as they say, and send us your comments (send them to Dillon Shea - dshea@nafcu.org).
Yesterday, Fannie Mae released a reminder about upcoming changes to their appraisal forms. The notice also discusses various training options available. If your credit union sells mortgages on the secondary market, be sure to take a look at these changes. A broader discussion of the Uniform Collateral Data Portal (UCDP) is here.
These documents usually look scarier than they really are. The total document is 70 pages in length, but the first 15 pages are made up of historical texts, reactions to comments, etc. The new guidelines start on page 16. They did a nice job of organizing the guidelines, including a handy-dandy table of contents.
So, when you do appraisal related research, here appears to be the universe of available regulatory "stuff."
The new guidelines, which will eventually be published in The Federal Register.
The 2005 Interagency FAQs on Residential Tract Development Lending.
There's also the recent interim final rule that amends Regulation Z concerning appraisals.
I think that's more than enough appraisal information for a Monday.
As those of you who deal with Fannie Mae and/or Freddie Mac know, Fannie and Freddie now require that lenders follow the Home Valuation Code of Conduct (HVCC) in order to deliver conventional, single-family loans originated on or after May 1, 2009 to them. Many of you have told us about the difficulties you've had with the HVCC. NAFCU continues to seek relief from HVCC-related burdens. We also sent a letter to the Hill on this issue. Download H R 3044 Comment Letter.
For example, here's a Fannie FAQ that attempts to clarify a major area of confusion: providing borrowers a copy of their appraisal.
Question: Can you clarify the requirements around Section II of the Code requiring the borrower’s receipt of the appraisal?
Answer: The Code requires that a borrower be provided a copy of the appraisal no less than three days prior to the closing of the loan. The Code allows that the borrower may waive this three-day requirement. Situations where a borrower is unaware of his or her right to a copy of the appraisal prior to the three days and is then provided a waiver of that right at the closing table, would not be compliant with the intent of the Code. The time period of rescission in a refinancing situation does not constitute a valid three-day waiver period.
The Code does not specify what form the waiver must take or whether it be oral or written. In addition, the Code does not prohibit that a waiver, given in a timely manner, be recorded at some later point when the parties are available. Each lender must develop its own policies, procedures, and documentation. For example, a lender may obtain a waiver from a borrower through an email, phone call, or some other means, prior to the three-day period, and then have that waiver recorded in writing at the settlement table or at some other time.
The three-day period begins on the day of the receipt of the appraisal. For example, in a non-waiver situation, where a borrower received an appraisal on Monday, the closing could be held on Wednesday. Saturday is included for purposes of counting the three-day period. Sundays and legal holidays are not included for counting the three-day period.
I would forward this to whomever at your credit union is tracking the HVCC issue.
In other compliance happending, the Fed has updaded the dollar amount of its fee-based HOEPA trigger down to $579, effective January 1, 2010. Read all about it here.
The Home Valuation Code of Conduct required the creation of the IVPI (I wasn't going to spell that out twice). This entity was to serve as a body that would accept referrals and complaints about noncompliance with the HVCC. Fannie Mae issued a Lender Letter recently to note that the IVPI is not in place yet. It is still being finalized. A temporary process will be put in place until the IVPI starts rolling. Read all about it here.
Editor's Note: IVPI does look like a Roman Numeral, but it isn't. The P won't work. For anyone who wants to quickly convert Roman Numerals into normal numbers (and vice versa), go here.
Q4. When will the federal banking agencies, Federal Financial Institutions Examination Council, and Farm Credit Administration have a system for registering employees of federally insured depository institutions and their subsidiaries?
A specific date has not been set, but Fannie Mae will communicate updates to lenders as more information becomes available. Lenders are expected to comply with their regulators’ requirements as systems and processes are established.
Home Valuation Code of Conduct; Whoops!
You may have heard about the Home Valuation Code of Conduct (HVCC). For credit unions that do mortgage lending, this is a big deal. Well, here's some help.
Fannie Mae has put together a very nice HVCC resource page. Access it here. It has an FAQ, the HVCC itself, and some Fannie-related guidance. (OK, that last phrase sounds funny.) Seriously, though - this is a very good source of HVCC information.
NAFCU is also offering an HVCC/Appraisal webcast later this month. Read all about it here. We put together a nice line-up. We have someone from NCUA's Examination and Insurance side, a person from NCUA's Office of General Counsel, an expert from Fannie Mae, and an expert from the appraisal industry. I can't imagine a better panel to address the changes.
Yesterday's post on preemption had a dead hyperlink. Use this link to access NCUA's recent legal opinion letter, which indicates that NCUA's regulations preempt a New York State law that attempts to limit insurance-related activities at federal credit unions. I apologize for any inconvenience.
Yesterday, FinCEN issued its annual report for 2008. Access it here. If you need to do board or staff training, this document does a good job of giving you the history of FinCEN, basic information and definitions for the filings, and a broad overview of what happened this year at that Agency.
Last week, Fannie Mae and Freddie Mac reached a new valuation agreement with New York Attorney General Andrew Cuomo. Here's a NAFCU Today article that details the changes. Effective date? The new rules will be effective for single-family mortgage loans (except government-insured loans) that are originated on or after May 1, 2009. Here's a link to the new code provided on Fannie Mae's website. Look for more guidance in the next week or so.
FFIEC regulators, including NCUA, have issued proposed guidelines to address appraisals. Read a NAFCU Today article about the proposal here. (The article also contains a link to the actual proposal.) If your credit union does real estate lending, make sure someone is aware of the proposal.
Earlier, I posted about "Web 2.0" and your reputation. In short, many consumers have blogs, use Twitter and post videos about...well, whatever they want. The earlier post showed how Bank of America was taking a beating over some overdraft protection fees.
Well, be sure to read this post by Tim McAlpine of Currency Marketing. He does a great job of showing how Motrin managed to anger many, many mothers. And how their anger is surging through the Internet.
My thoughts are this: to properly manage your credit union's reputation, you have to understand today's environment. If you do something to anger a member, that member has many ways of venting their frustration on the World Wide Web. Does your credit union have a mechanism to monitor what is being said about you in blogs, on Twitter or in Pod-casts?
(They agree) to adopt a Home Valuation Protection Code (Code)...Fannie Mae has requested comments from its customers and other market participants regarding the implementation and deployment of the Code.
The Code would apply to single-family mortgage loans (except government-insured loans) nationwide that are originated on or after January 1, 2009. Among other things, the Code would require credit unions to select appraisers and not use reports completed by appraisers selected by any other party, to establish a hotline and email address for appraisal related complaints and report improper conduct to the Institute, to report appraisers that the credit union reasonably believes is violating applicable laws to the Institute and certifying agency, and to the quality control test. It would also prohibit credit unions from influencing appraisers.
In short, this agreement would create a new appraisal system for anyone who wants to sell a mortgage to Fannie or Freddie. Hmmm. But don't we already have an appraisal reg? I wasn't the only one who thought so. Here's a critical response to the agreement from OCC Comptroller John Dugan. And here's NAFCU's response.
Only time will tell what happens here. The agreement would be one more thing for credit unions that do mortgage lending to monitor and follow. But it has created a hail-storm of opposition from some pretty big players.
Yesterday, NCUA issued Legal Opinion Letter 08-0129 (February 8, 2008). You may access it here. I find the letter interesting for a few reasons.
First, any legal opinion letter sheds light on an issue, and therefore should clarify some confusion. This letter clarified that credit unions are not required to have a checklist or narrative to document its review of a real estate appraisal. NCUA guidance issued in 2005 indicated that credit unions should do so. NCUA's letter notes the practice of using a checklist or narrative "although not required,...is recommended in interagency guidance."
Second, this legal opinion letter sheds some light on agency recommendations. The recommendation to use a checklist or narrative was issued via a Letter to Credit Unions in 2005. NCUA's legal opinion letter clarifies that, if push comes to shove, credit unions do not have to follow that guidance.


2012—Pub. L. 112–154, title IV, § 402(b)(2), Aug. 6, 2012, 126 Stat. 1190, struck out item 3036 “Reporting requirement”.
2010—Pub. L. 111–275, title X, § 1001(f), Oct. 13, 2010, 124 Stat. 2896, added item 3020 and struck out former item 3020 “Authority to transfer unused education benefits to family members of career service members”.
2008—Pub. L. 110–252, title V, § 5006(e)(1), June 30, 2008, 122 Stat. 2386, added item 3020 and struck out former item 3020 “Transfer of entitlement to basic educational assistance: members of the Armed Forces with critical military skills”.
2002—Pub. L. 107–330, title III, § 308(b)(2)(B), Dec. 6, 2002, 116 Stat. 2827, amended item 3014A generally, substituting “in high technology occupation in high technology industry” for “in high technology industry”.
2001—Pub. L. 107–107, div. A, title VI, § 654(a)(2), Dec. 28, 2001, 115 Stat. 1156, added item 3020.
Pub. L. 107–103, title I, § 104(a)(2), Dec. 27, 2001, 115 Stat. 981, added item 3014A.
1996—Pub. L. 104–275, title I, § 106(b)(1), Oct. 9, 1996, 110 Stat. 3329, added item 3018C.
1992—Pub. L. 102–484, div. D, title XLIV, § 4404(b)(1), Oct. 23, 1992, 106 Stat. 2706, added item 3018B.
1991—Pub. L. 102–83, § 5(b)(1), Aug. 6, 1991, 105 Stat. 406, renumbered items 1401 to 1436 as 3001 to 3036, respectively.
Pub. L. 102–54, § 14(c)(2), June 13, 1991, 105 Stat. 285, substituted “subchapter” for “chapter” in item 1423.
1990—Pub. L. 101–510, div. A, title V, § 561(a)(2), Nov. 5, 1990, 104 Stat. 1573, added item 1418A.
1988—Pub. L. 100–689, title I, §§ 101(b), 103(c), 107(a)(3), Nov. 18, 1988, 102 Stat. 4162, 4166, 4168, added items 1417 to 1419.
1986—Pub. L. 99–576, title III, § 301(d)(2), Oct. 28, 1986, 100 Stat. 3268, amended item 1432 generally, substituting “Limitations” for “Limitation”.


Trademarks traditionally are logos or words that identify the source of a brand, good, or service. Trademark and trade dress protection , however, can also extend to sounds, scents, flavors, colors, textures, and the appearance of a product.
The Arizona Legislature has enacted substantial changes to “dwelling actions” – construction defect litigation that involves single- and multi-family homes.
Fair use protection does not apply in the circumstance of marijuana-infused products because the trademarks are used as a "designation of source."
Manufacturers seek patent protection on new products, marketing-related companies protect trademarks and trade names and the development of a community of creative professionals (including filmmakers) across the state increases demand for copyright-related legal services.
With over 19 million acres of reservation trust lands in the state of Arizona, and approximately 40 percent of the renewable energy resources in the sate, the 22 federally recognized Indian tribes are uniquely positioned to take advantage of their energy resources to promote more energy development - especially clean energy - and improved energy services to tribal communities.
Mark Snyder had lived in Camelback Country Estates in Paradise Valley for three years when he began noticing changes in the neighborhood: trash stacked up on the curbs, red Solo cups on the front lawns, blaring music and 12-passenger vans parked on the street. The homes were being rented out on VRBO and Airbnb after a state law passed in 2016 expanded protections for short-term rentals. VRBO and Airbnb are just two popular vacation rental websites.
Cooperative Research and Development Agreements (CRADAs) are arrangements between a federal agency, in the form of a government-owned laboratory (either government or contractor-operated) and another party, often referred to as a “collaborator.” CRADAs facilitate the transfer of technology from the federal government to the private sector by making available government facilities, intellectual property, and expertise in collaboration with industry and other types of entities. These agreements are intended to lead to the development of commercial products. The chief benefit of a CRADA to a collaborator is that it may obtain rights to the intellectual property that is produced by the joint research and development effort. In return, the federal laboratory receives resources that advance its research and development mission. To successfully negotiate a CRADA, prospective collaborators must understand what a CRADA is, how it is structured, and the issues that need to be resolved before the agreement can be executed.
This article explains the provisions of the New Act (A.R.S. §§ 29-3101 to 29-4202) relating to fiduciary duties and rights of indemnification of limited liability companies. The New Act clarifies the duties owed by the managers and members of LLCs, expressly allows limited modifications by agreement, and expressly allows members to elect to apply the rules governing corporate director liability based on fiduciary duty (including the business judgment rule) to LLC managers in lieu of the New Act’s default rules on fiduciary duties. The New Act also provides default rules governing the right of a manager or member to be indemnified by the company against third-party claims. The LLC statute previously in effect (A.R.S. §§ 29-601 to 29-858) (the “Old Act”) was silent on both of these topics.
In the last several years, there has been a surge in the number of sexual assault victims who have publicly disclosed their stories. Sexual harassment is prevalent across a broad range of industries, including Hollywood, media, hospitality, and healthcare. Many industries have been spurred to reexamine their own policies to prevent sexual harassment. The gaming industry is no different.
An employee who worked as a Rivers Casino & Resort hotel housekeeper in Schenectady, New York and was fired has filed a lawsuit against the casino and its supervisors, claiming religious discrimination.
Republicans on the Senate Appropriations Committee voted to advance a bill to bring sports gambling to bars and private clubs over the objections of representatives from tribal governments across the state, who argued that sports betting should be discussed in negotiations with the governor’s office.
PHOENIX – Ten months after the U.S. Supreme Court cleared a path for states to allow gambling on sporting events, a movement is underway to allow Arizonans to wager on their favorite teams.
SB 1158, introduced Jan. 23 by Sen. Sonny Borrelli R-Lake Havasu City, would allow sports gambling in the state by giving Native American tribes exclusive rights.
The U.S. Supreme Court in 2018 struck down a law that generally banned sports betting. Since then, states including New Jersey, New Mexico and Pennsylvania have legalized it.
Many others have introduced bills to legalize sports betting, including Arizona. Senate Bill 1158 would allow Arizona tribes to operate sports betting and sets out other guidelines for how that’d work. The measure was scheduled to be heard in a Senate committee Thursday morning.
To talk about what that could mean for Arizona, The Show reached out to Steve Hart, an attorney with the firm Lewis & Roca who practices Indian law and gaming law, among other things, as well as economist Jim Rounds, president of Rounds Consulting.
The Smith Center's Insider Interview with Joel Henriod.
Sen. Sonny Borrelli, R-Lake Havasu City, wants to bring sports gambling to bars and private clubs throughout Arizona, but he wants the state’s tribes to have exclusive rights in operating sports betting.
Law360 (January 25, 2019, 9:27 PM EST) -- Three national Native American groups urged the Fourth Circuit on Thursday to overturn a Virginia district court’s refusal to toss a proposed class action against two lending companies, saying the ruling that they weren’t entitled to share in a Michigan tribe’s immunity to suit intrudes on tribal sovereignty and hamstrings tribal economic development.
Tucson city elections are unfair in two ways: One —they focus on irrelevant political party affiliations and, thus, obscure important local issues and make them harder to solve. Two —they subvert democracy by allowing residents in one part of the city to choose City Council members for residents in another part of the city.
2018 was the year of data privacy. In April, Facebook CEO Mark Zuckerberg was called to testify before Congress to answer difficult questions about Facebook’s protections for its user data. In May, the European Union’s General Data Protection Regulation made it known to the world that the privacy of its citizens was to be taken seriously and imposed severe consequences for those who failed to comply. Across the United States, states like California and Colorado enacted sweeping data protection laws. The message is clear: consumers want their privacy and governments are taking steps to protect them.
When operating a nonprofit, most board members and executive directors believe the organization is less likely to be sued because of the “good” work it does. But nonprofits, just like any other business, have risks of liability in running their operations.
This discussion Laura had with Julia Patrick of the American Nonprofit Academy explores various risks nonprofits face, potential liabilities that may arise, and tools to manage them.
U.S. Supreme Court decides that when the parties agree to arbitrate disputes between them and assign the power to an arbitrator to determine if a particular dispute is one that must be arbitrated, the arbitrator must make that decision.
A look at the subject matter jurisdiction in probate court. This article focuses on the impact the Colorado Supreme Court's recent decision in Sandstead-Corona v. Sandstead.
Claim Notification and Reservation of Rights: The Sooner The Better Essential Guidance for Both Sides of an Insurance Contract.
The Kansas Supreme Court’s recent ruling in Becker v. The Bar Plan Mutual Insurance Company1 revived an investor’s shot at recovering a $3.9 million judgment for legal malpractice against his former attorney’s insurer. Although the bottom line of this decision may easily grab the attention of an insurer (not to mention an attorney), the case offers essential guidance to both sides of the insurance contract.
Law360 (December 17, 2018, 5:51 PM EST) -- Trial watchers saw plenty of drama in 2018, from the latest mega-million matchup between Apple and its longtime patent nemesis in Texas to a nationwide series of back-and-forths between Johnson & Johnson and plaintiffs alleging its baby powder causes cancer, which ultimately led to billions of dollars in damages against the pharmaceutical giant.
Law360 (December 3, 2018, 10:02 PM EST) -- When hotel giant Marriott International Inc. merged with rival Starwood Hotels in 2016, it also unwittingly bought a reservation database where the company said Friday intruders were lurking undetected, illustrating the risks of missing cybersecurity gaps during due diligence.
Law Week Colorado’s annual Colorado 200 lists the largest firms in Colorado according to headcount. We collect information on Colorado’s law firms through a self-reported survey, and when we don’t have that survey information available, we count attorneys ourselves.
Connecting investors to tribal communities may help bolster economic sustainability and build capacity on reservations.
Everywhere you look, there is another state looking at new legislation designed to facilitate sports betting, but in one state, both a tribal casino and the state lottery have started taking bets, or announced plans to, without a single legislative change.
The New Mexico Lottery Authority approved a new sports game last week that would effectively be a parlay card, requiring players to correctly guess three or more results correctly.
A guest grabs pick sheets during the launch of full-scale sports betting at Dover Downs Hotel and Casino in Dover, Delaware. Legalizing sports betting across New Mexico would come with a $74 million hit to state revenue if tribal gaming compacts aren’t renegotiated. That loss—stemming from a provision that gives tribes exclusive gaming rights—far outweighs tax revenue estimates if the state widely legalizes sports betting, according to new projections presented to state legislators. At risk is shared gaming revenue the state gets from tribes under those compacts.
Law360 (November 2, 2018, 5:51 PM EDT) -- U.S. voters will consider more than 200 state and local transportation-related ballot initiatives on Tuesday, including gas tax increases, bond issuances and so-called lockbox measures ensuring that transportation and infrastructure funds are used exclusively for their intended purpose.
On Saturday, it will be 20 years since California voters went to the polls and passed Proposition 5, a genuinely historic ballot measure which gave gaming tribes a decisive victory over Nevada's casinos and ensured the future of the $32.4bn juggernaut known as Indian gaming.
One commonly used phrase in answers and discovery responses is that a document "speaks for itself." Many defense lawyers use this phrase to avoid conceding issues related to the interpretation of a writing, such as a contract. This tactic has drawn criticism from courts, and beginning in July 2018 the Arizona Rules of Civil Procedure prohibit using this phrase in an answer.
Uncertainty over who will replace Brian Sandoval to become the 30th Governor of Nevada - and a crucial showdown over the controversial energy ballot measure Question 3 - will have a large impact on the 80th Session of the Nevada Legislature.
The impact of the Supreme Court's Stern v. Marshall decision on secured creditors.
As more city governments across the country consider enacting laws requiring employers to give workers varying amounts of paid-sick-leave time, some state lawmakers have blocked local jurisdictions from doing so.
Effective January 1, 2018, the Supreme Court of Arizona adopted changes to the Judicial Review of Administration Decisions Rules (the “JRAD Rules”). The changes approved by the Court simplify the rules and are intended to enable all litigants to better understand the process and promote the expeditious resolution of proceedings on the merits. The revised JRAD Rules and accompanying forms stem from the Court’s initiative to promote access to justice. At the same time, the revised rules allow parties—regardless of their familiarity with the administrative and administrative appeals process—to engage on the merits and seek a substantive resolution of the proceedings.
As the post-Wayfair landscape firms up, it's clear the case could have applications beyond remote sellers, reaching into states' authority to pursue business taxes using economic nexus, the adoption of factor presence nexus standards, and even the tax policies of European countries.
Running with the bulls in Pamplona, Spain is an experience like no other. Lore is that you know when to run when you see the fear on the runners’ faces who started earlier in the course. Adam Massaro, an intellectual property litigator at Lewis Roca Rothgerber Christie LLP, could not pass up experiencing this self-imposed chaos.
If you ask three HR professionals about how to give and request references, you are likely to get five opinions. This is an area fraught with conflicting information and a fear of legal risk. However, schools need references to determine whether an applicant might be a good fit for the job they have open. Information about past performance is critical to this decision.
A current trend in the federal and Nevada appellate courts brings to mind the 1988 fight between Michael Spinks and the reigning heavyweight champion, Mike Tyson. Both were undefeated. It was then the richest fight in history, grossing $70 million, funded largely by pay-per-view fees from over 600,000 households. But the spectacle ended quickly. Tyson knocked out Spinks halfway into the first round, in just 91 seconds. (A fight that “goes the distance” to a decision lasts 36 minutes over 12 rounds.) During his career, Tyson won eight fights in less than a minute.
A recent change to California law significantly limits the ability of debt collectors to collect a time-barred consumer debt. Effective January 1, 2019, amendments to the Rosenthal Fair Debt Collection Practices Act will require debt collectors to notify debtors if they are attempting to collect a time-barred consumer debt. The changes also prohibit debt collectors from initiating legal proceedings to collect the debt under most circumstances.
Lewis Roca Rothgerber Christie forms strategic alliance in cybersecurity space.
Slack. Jabber. Google Hangouts. Wickr. Confide. Messaging apps are no longer the future of eDiscovery, they are the present. Although these chat-style software programs and mobile messaging apps provide convenience for day-to-day business, they can present significant challenges in litigation. A party who is in litigation, or who reasonably anticipates being in litigation, is obligated to preserve relevant electronic evidence. But what does that mean for a business that utilizes an enterprise-wide chat function or other forms of messaging? Are employees permitted to use “disappearing” ephemeral messaging apps to communicate after a litigation hold is in place? Can they only use systems that can be configured to prevent a message from being completely deleted? By and large, these questions remain unanswered, but understanding the rules framework will lead us toward some of these answers—and is the first step to preventing the data disappearing act from catching you by surprise.
On August 29, 2018, Chief Justice Scott Bales signed an order stating that a majority of the justices ruled that Proposition 207’s description of the campaign’s proposed tax hike on those making $250,000 or more, did not include language describing how the law would affect the tax brackets at every income level. The Justices determined that the drafting and the substance of the description made “the description . . . inadequate.” As a result, the Arizona Supreme Court removed Proposition 207 from the ballot because petitions did not state that the measure would eliminate indexing tax brackets to changes in the Consumer Price Index.
Attorneys discuss key considerations for companies pulling off relocation.
Arizona leaders have to consider a potential “poison pill” in their gaming compacts with Indian tribes when weighing the legalization of sports betting, according to a Phoenix-based attorney. Passing a law to let the state or businesses offer gambling on games would reduce how much revenue tribes owe Arizona from their casinos across the state, said Stephen Hart, a partner with Lewis Roca Rothgerber Christie LLP who practices Indian and gaming law.
In 2011, Arizona became the first state to create an Empowerment Scholarship Accounts (ESA) program, allowing parents or guardians of students with disabilities to use state funds, in the form of an ESA, for private school education. The law, which established the ESA, provided funding for private school and is measured at 90 percent of what the state would have paid for the student to attend a public school district or charter school. The law allows parents or guardians to use a prepaid bank card to pay for education-related tuition, fees, textbooks, tutoring, educational therapies, and curriculum. Since its inception, the ESA program has been expanded to cover students meeting other specified criteria, including children who attend failing schools and children who live on an Indian reservation.
Labor & Employment attorney, Melanie Pate, is quoted in a SHRM Online article addressing the importance of exit interviews when an employee leaves a company.
On May 29, 2018, Colorado governor John Hickenlooper signed into law House Bill 18-1128, which significantly expands existing privacy and data breach notification laws. Under the newly enacted legislation, covered entities that maintain paper or electronic documents with personal identifying information are to implement and maintain reasonable security procedures and practices. These entities will be required to investigate suspected security breaches and, when a security breach occurs, numerous notification requirements are triggered. The act takes effect on September 1, 2018.
Awards of almost all federal contracts are based on the agency’s evaluation of price, technical approach, and contractor responsibility. While each factor is vitally important, no contract will be awarded to a contractor found nonresponsible. Responsibility encompasses a broad range of standards. Prospective contractors need to understand these standards and how they are applied.
Arizona history is alive, and its echoes can be seen in our Constitution’s direction that legislation signed into law by the Governor does not become effective until 90 days after the end of the Regular Legislative Session.
The more you know about your client's HR culture and departmental goals, and the more effort you make to create a comfortable, mutual working style, the more you become their trusted resource for legal questions.
Employee no poaching agreements – is this legal? Litigation attorney, Bruce Samuels authored an article featured in AZBigMedia addressing the ramifications of such agreements in response to recent news surrounding the fast food industry.
Ensuring compliance on a regular basis can be a daunting task for many nonprofit organizations. This undertaking can be simplified to some degree by leaders reviewing certain organizational and governance aspects that could expose weaknesses and prompt action towards compliance.
Robert Martin, chairman of the Morongo Band of Mission Indians, views the looming political war over sports betting in California with a sense of dread, largely because it comes on the heels of a failed, decade-long battle to get online poker legalized in the Golden State.
Closing day for a home purchase, a real estate transaction or the purchase of a business is always an exciting day. Unfortunately, internet thieves are targeting financial institutions, professionals and individuals participating in financial transactions seeking to steal wire transfers used to fund the deals. According to the FBI, between October 2013 and May 2016, thieves diverted or attempted to divert wire transactions valued in excess of $3 Billion.
Early Monday morning, the United States Supreme Court ended a nearly six-year long legal battle regarding the constitutionality of the Professional and Amateur Sports Protection Act (“PASPA”). In doing so, the Court held that PASPA violated the 10th Amendment’s “anti-commandeering” principle, which provides that if the Constitution does not give power to the federal government or take power away from the states, that power is reserved for the states or the people themselves.
Big Fish Casino is one of many social gaming applications that provide “freemium” online casino games. Similar to many other providers, users are awarded free chips when they create their account and may obtain additional chips by winning games, via free chip replenishment, or by purchasing additional chips. Big Fish Games was owned by Churchill Downs Incorporated, and subsequently sold to Aristocrat Leisure Limited earlier this year.
Artificial Intelligence (“AI”) is impacting nearly every industry as both public and private companies embrace AI to increase their efficiency and competitive advantage.
The Uniform Commercial Real Estate Receivership Act (UCRERA) gives Nevada courts clear and limited guidance on the appointment and powers of commercial real estate receivers.
For several years I have been following five interesting New York lawsuits in bankruptcy court alleging a violation of the discharge injunction based on how the discharge was (or was not) reported to credit bureaus.
On Wednesday, February 21, the U.S. Supreme Court issued a decision ruling that whistleblowers protected by the Sarbanes-Oxley Act and the Dodd-Frank Act are limited to employees who provide information concerning violations of those laws to the Securities and Exchange Commission.
On January 19, 2018, Maryland House Bill 283 was introduced by Republican Delegate Robin Grammer. The bill exempts competitive video games, known as eSports, from the state’s laws banning wagering and gambling.
Senator Eileen M. Donoghue has introduced Senate Bill 2273 (“SB 2273”) into the Massachusetts legislature to regulate online gaming, daily fantasy sports, and online sports betting. While the focus of the bill is currently on daily fantasy sports, as the Legislature needs to act by July 31, which is when temporary authority allowing daily fantasy sports to operate in the state expires, the scope of the overall bill is concerning.
During 2017 there were several key sets of action – at the federal, state, local, and industry levels –that have, or will, directly impact Indian clean energy development opportunities. Some of these actions will benefit Indian tribes seeking to develop clean energy resources or becoming more energy self-sufficient.
The U.S. Supreme Court’s unanimous decision in Impression Products, Inc. v. Lexmark International, Inc. reflected an increased adherence to the doctrine of patent exhaustion.1 Although the opinion, authored by Chief Justice John Roberts, roundly rejected Lexmark’s attempts to limit use of its patented ink cartridges after their initial sale, analysis of the opinion suggests that there may still be options going forward.
PHOENIX -- Plans for what could be an instant state-run numbers game hit a snag Wednesday as an attorney for the state's largest tribe warned lawmakers it would blow up a decades-old agreement.
The experimental use exception, part of U.S. patent law for nearly two centuries, is becoming obsolete. Recent court decisions and changes under the America Invents Act (AIA)1 have raised doubts about the continued viability of the doctrine.
Many debtors who need chapter 11 relief inevitably lack the cash to file a case, but for those lawyers who are unable to contribute their time pro bono, getting paid is important.
Marla Hudgens, Partner, and Holly Logue, Of Counsel, recently presented a webinar in collaboration with the Outdoor Industry Association on the most common legal issues facing start-up companies in the sports and outdoor recreation industry space.
Federal Rule of Civil Procedure (FRCP) 45 sets out the rules that parties must follow when issuing or responding to a subpoena in federal litigation. Yet non-parties are increasingly being asked to preserve potentially relevant electronically stored information (ESI) before a complaint has been filed or a subpoena has been served. To help these non-parties determine the best course of action and narrow their preservation obligations, counsel should be familiar with the FRCP 45 framework and common objections to non-party preservation demands.
On November 27, 2017, the U.S. Supreme Court heard oral argument in Oil States Energy Services LLC v. Greene’s Energy Group, LLC, a case examining the constitutionality of inter partes review proceedings before the United States Patent and Trademark Office (“PTO”).
Manufactures of traditional gaming devices and, more recently, skill-based content, have often been deterred from showcasing their products in the US state of Nevada because of the state's arduous barriers to entry.
When seeking or opposing class certification, most of us begin and end our analysis under the Rule 23 framework. This is hardly surprising; after all, Rule 23 governs the certification process. The problem, however, is that focusing on Rule 23 can sometimes blind attorneys to critical constitutional doctrines often at play during certification proceedings.
The closing concludes and a company suddenly has $50 million in cash in its bank account from the sale of its stock. Champagne corks are popped and celebration ensues for a brief period. “Going public” is an exciting event for all involved and may provide many advantages to the company’s operations. However, being a public company has certain disadvantages that should also be considered.
In a case of first impression, the Ninth Circuit held in Syed v. M-I, LLC that an employer violates the Fair Credit Reporting Act (FCRA) when it procures a job applicant’s consumer report after including a liability waiver in the disclosure form mandated by the FCRA. The Court also held that including a liability waiver in the disclosure form amounts to a willful violation of the FCRA, thereby subjecting the employer to statutory damages, punitive damages, attorneys’ fees and costs.
On September 12, 2017, House Bill 4926 (“HB 4926”) was introduced into the Michigan legislature by Representatives Iden, Crawford, Kosowski and Kesto. The bill seeks to legalize internet gaming, and impose taxes and fees on internet gaming operators. HB 4926 includes language that would give state regulators up to one year to promulgate rules and regulations that would cover the licensing and operation of online gaming sites.
These issues are not easy to resolve and involve lots of negotiation, interviews, forced mediation, discovery, expert testimony and, sometimes, a trial. “Bucks” are hard to come by in chapter 7, and creditors are facing newer — and more aggressive — forms of fraudulent-transfer actions.
What are businesses’ obligations to make websites and mobile applications accessible to individuals with disabilities? Business owners and operators may want to pay close attention to these developments to ensure their businesses comply with their obligations and avoid liability.
The U.S. Citizenship and Immigration Services has released a revised version of Form I-9. The form is used to verify the identity and employment authorization for each individual hired for employment in the U.S. All U.S. employers must complete a Form I-9 for every individual hired. Employers should be aware that the revised form must be used beginning Sept. 18, 2017.
It should be noted that The DAO is only tangentially connected to virtual currency such as “Bitcoins” and “Ether.” The DAO (“Decentralized Autonomous Organization”) is an Internet-based “Thing.” To get involved in the Thing, one must transfer to it a bunch of virtual currency Ethers. The trick here is that to obtain these virtual Ethers, one must pay money or money’s worth to someone else who has them to sell.
Over the past several years (and during the last residential real estate boom), certain Colorado laws have proven to favor the position of condominium boards over that of developers in disputes over construction defects. As a result many residential developers have not participated in the condominium market during this time. As of September 1, 2017, however, the balance of power is shifting and lenders and developers should take notice of the new, more favorable environment.
The Ninth Circuit considers a district court’s sua sponte dismissal of an interpleader action on the grounds that the parties failed to make a good-faith effort to comply with their stipulation to resolve the case and the interpleading plaintiff filed the interpleader prematurely.
The U.S. Supreme Court’s decision in CalPers v. ANZ Securities, Inc. provides compelling new support for a respondent arguing an eligibility motion before a FINRA arbitration panel. With the weight of the Court on their side, broker-dealers may have their own opportunity to level the playing field.
Keeping Up with Ever-Changing Noncompete Laws In Nev.
The concept of “home” has attracted significant attention from the U.S. Supreme Court, limiting the locations where a corporation can be sued. These decisions will be helpful to local corporations finding themselves defending large lawsuits filed far from home, and in jurisdictions hand-picked by plaintiffs that are known to be plaintiff-friendly.
If you have not yet put a plan in place to comply with Arizona’s new paid sick time law, you only have a few days remaining to do so, and the consequences for not doing so can be steep.
Assembly Bill 276 (AB 276) significantly changes Nevada’s law on restrictive covenants of non-competition.
Arizona Revised Statutes (A.R.S.) § 12-552, also known as the Statute of Repose, requires a party to bring a contract action relating to the design, engineering, or construction of improvements to real property within eight years of substantial completion of the work (or nine years if the claim involves latent defects discovered in the eighth year after substantial completion). The statute requires the claim to be brought within this time period even if the claim arose long after project completion. Put more simply, Arizona law imposes a strict deadline of either eight or nine years on the assertion of contract-based claims arising out of construction projects.
On April 12, 2017, U.S. Secretary of Commerce Wilbur Ross announced that the newly launched Swiss-U.S. Privacy Shield Framework (Swiss Privacy Shield) is now accepting self-certifications.
Would Your Software Patent Hold Up to a Novelty-Type Analysis Under the Alice Test?
What Will U.S. Companies Have To Do To Comply With The EU Privacy Shield Agreement?
Invest in Our Community: Do Nonprofits Impact Our Economy?
The number of premium domain names available to churches and related religious organizations is about to increase significantly.
Advising 401(k) plans: Are you acting as an ERISA Fiduciary?
On May 21, 2012, there began a confrontation between church and state unlike any in American history. Forty-three Catholic institutions filed twelve lawsuits in twelve federal courts seeking religious exemption from an HHS regulation.
"Hosanna": The Supreme Court Strongly Praises the Constitutional Right to Select Ministers?
Did I Just Create a Contract?
While snapping photos of Hollywood celebrities may seem harmless, what you do with those photos may not be.
Colorado General Assembly Answers the Question, "Who Owns the Wind"?
The Ninth Circuit court is considering whether to affirm a definition of authorization that will allow employers a remedy against Insiders who exceed their authorized access, or whether to define to term narrowly.
Landmark U.S. Supreme Court 9-0 Decision?
A growing number of cases address the issue of post-filing conduct. Interestingly, nearly all the decisions appear to conclude that the duty of good faith and fair dealing that an insurance company owes does not end with the commencement of litigation and thus continues through trial.
Is Your Business Ready for Mandatory Sick Leave?
No matter what your personal views on the issues of medical marijuana (MMJ), it is clear that the growing and dispensing of MMJ has impacted the real estate market in Denver and the Front Range.
The Florida Supreme Court's Decision in Olmstead: Expanded Rights for Creditors of Single-Member LLCs?
Gaming varies widely from state to state and from country to country. As a consequence, regulatory systems can be very similar or significantly different.
A gaming company’s regulatory compliance program is a key component of how the company manages risk attendant to criminal and regulatory violations by its officers, directors and employees.
Casino compliance plans are as unique as the casino companies they protect. These plans are designed to identify and evaluate risks arising in the course of business that may negatively affect objectives in order to ensure sound and appropriate gaming control.
What is a casino license worth? To a gaming company, the answer is simple: everything. Without a gaming license, the company’s ability to earn revenues is exhausted. Regulatory compliance programs are simply an insurance policy for the company’s future.
There are a series of documents that together can constitute a teaming arrangement.
The United States Supreme Court correctly recognized in the 2004 Hood and 2006 Katz cases that the fundamental nature of bankruptcy cases and proceedings is distinct from litigation of statutes enacted under the Commerce Clause or other sections of Article I of the Constitution, in a way that is critical to sovereign immunity analysis.
When your business develops or acquires information that is not known to your competitors, you may have more than one option for protecting it.
Contracts are predictions. Intended to govern the future relationship between parties, the reality is that contracts run into unanticipated conditions and events, necessitating changes. The more complicated the purpose of the contract, the more likely it is the parties will have to deal with the unexpected.


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The Eleventh Circuit Court of Appeals has held that a famous artist (Daniel Moore) who painted highly realistic scenes of the University of Alabama football team (fearsomely promoted as ROLL TIDE) has a First Amendment right as an artist which “clearly outweigh[s] whatever consumer confusion that might exist on these facts” over Alabama’s right to control its highly recognized football uniform and colors (crimson and white). University of Alabama Bd. Of Trustees v. New Life Art, Inc., Case No. 09-16412 (11th Cir. June 11, 2012). (available here). Although artist Moore (and his company New Life) had multiple licenses in the 1990s, the critical aspect of the case involves Moore’s copyrighted paintings of Alabama’s sports team and sales of merchandise bearing his art (mugs, calendars, etc.).
The University claimed that Moore’s unlicensed paintings, prints and calendars and coffee mugs infringe the University’s trademarks because the inclusion in Moore’s products of the University’s football uniforms (showing the University’s crimson and white colors) creates a likelihood of confusion on the part of buyers that the University sponsored or endorsed the product. Slip opn. p. 16 (herein “p. #”). Avoidance of confusion is the purpose behind the federal trademark act, the Lanham Act. 15 U.S.C. sec. 1125. The University’s claim of trademark rights to its uniforms was not well established. The court rejected its consumer survey results because the survey used only one of Moore’s prints. P. 18.
“As our discussion below indicates, we conclude that the First Amendment interests in artistic expression so clearly outweigh whatever consumer confusion that might exist on these facts that we must necessarily conclude that there has been no violation of the Lanham Act with respect to the paintings, prints, and calendars. The First Amendment’s protections extend beyond written and spoken words. ‘[P]ictures, films, paintings, drawings, and engravings . . . have First Amendment protection[.]’ Kaplan v. California, 413 U.S. 115, 119-20, 93 S. Ct. 2680, 2684 (1973); see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569, 115 S. Ct. 2338, 2345 (1995) (‘[T]he Constitution looks beyond written or spoken words as mediums of expression.’).” P. 18-19.
Like other expressive speech, Moore’s paintings, prints, and calendars were entitled to full protection under the First Amendment. P. 16, see also ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 925 (6th Cir. 2003).
The court discussed the leading case of Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), involved a film of two Italian dancers called “Ginger and Fred.” Ginger Rogers, a famous dancer who often worked with Fred Astaire, sued claiming violation of their trademark rights.
“Thus, the court adopted a balancing test: ‘We believe that in general the Act should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. In the context of allegedly misleading titles using a celebrity’s name, that balance will normally not support application of the Act unless the title has no artistic relevance to the underlying work whatsoever, or if it has some artistic relevance, unless the title explicitly misleads as to the source of the work.’ Id. at 999 … Accordingly, the court ruled in favor of the movie’s producers because the title was artistically relevant to the film, there had been no evidence of explicit misleading as to source, and the risk of confusion was ‘so outweighed by the interests in artistic expression as to preclude application of the Lanham Act.’ Id. at 1001.” P. 21. the same result was obtained in ESS Entertainment 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095 (9th Cir. 2008), where a scene in the defendant’s video game featured the trademark of the plaintiff’s entertainment club. See also ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 918-19 (6th Cir. 2003)(involving an artist painting a collage of Tiger Woods images).
“Therefore, we have no hesitation in joining our sister circuits by holding that we should construe the Lanham Act narrowly when deciding whether an artistically expressive work infringes a trademark. This requires that we carefully ‘weigh the public interest in free expression against the public interest in avoiding consumer confusion.’ Cliffs Notes, 886 F.2d at 494. An artistically expressive use of a trademark will not violate the Lanham Act ‘unless the use of the mark has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless it explicitly misleads as to the source or the content of the work.’ ESS Entm’t, 547 F.3d at 1099 (quotations and alterations omitted); see also Rogers, 875 F.2d at 999.” P. 24.
Although the 11th Circuit Court permitted Moore’s use of his art in paintings and calendars, it remanded to the trial court the issue of use of the art on mugs.

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Petitioners, operators of a municipal airport, brought suit in a state court for injunctive relief and damages against respondent toll road commission which had constructed a toll road whose height at a point from a planned runway petitioners contended exceeded that permitted by the municipal airport zoning ordinance. The State Supreme Court reversed the trial court's award of damages to petitioners, holding that the ordinance purported to authorize an appropriation of property (airspace) without compensation, which was unlawful under the Indiana Constitution and under the Fourteenth Amendment.
1. In holding that the ordinance effected a taking of respondent's property right in the airspace above its land without compensation, the State Supreme Court rested its decision upon independent and adequate state grounds, even though it also relied on similar federal grounds, and this Court is therefore deprived of jurisdiction to review the state court judgment. Pp. 379 U. S. 489 -492.
2. The state court decision is compatible with the Federal Airport Act, which does not defeat this respondent's right under state law to compensation for the taking of airspace. Pp. 379 U. S. 493 -405.
Reported below: 244 Ind. 574,193 N.E.2d 237.
"the ordinance purported to authorize an unlawful and unconstitutional appropriation of property rights without payment of compensation."
244 Ind. 574, 584, 193 N.E.2d 237, 242. Because it appeared that the case involved the validity of airport zoning regulations under the Fourteenth Amendment of the Constitution of the United States, and therefore presented important questions affecting the National Airport Plan not previously considered by this Court, we granted certiorari. 377 U.S. 942.
"'the settled rule that where the judgment of a state court rests upon two grounds, one of which is federal and the other nonfederal in character, our jurisdiction fails if the nonfederal ground is independent of the federal ground and adequate to support the judgment.' Fox Film Corp. v. Miller, 296 U. S. 207 , 296 U. S. 210 ."
Cramp v. Board of Public Instruction, 368 U. S. 278 , 368 U. S. 281 . As we have concluded that respondent is correct in its contention that the judgment sought to be reviewed is supported by an independent and adequate state ground, we dismiss the writ of certiorari as improvidently granted.
the Indiana Constitution [ Footnote 1 ] and the Fourteenth Amendment to the Constitution of the United States."
244 Ind. at 577, 193 N.E.2d at 238. In resolving that issue, however, the Indiana Supreme Court, quite understandably, did not analyze separately the effect of the two provisions but considered them together. From that fact, petitioners would have us conclude that the state ground of decision -- invalidity of the zoning ordinance under Art. 1, § 21, of the Indiana Constitution -- "is so interwoven with the other as not to be an independent matter. . . ." Enterprise Irrig. District v. Canal Co., 243 U. S. 157 , 243 U. S. 164 (dictum). (Emphasis added.) We cannot agree.
"(1) Whether air space above land is a constitutionally protected property right, and (2) whether, in the instant case, there has been a constitutionally proscribed taking."
244 Ind. at 578, 193 N.E.2d at 239.
"[i]n the light of the above authorities . . . , the reasonable and ordinary use of air space above land is a property right which cannot be taken without the payment of compensation,"
244 Ind. at 581, 193 N.E.2d at 240, flows from a federal, rather than a state, source. Indeed, the organization and language of the opinion indicates that, at the least, state law is an equal ground of decision.
The discussion of the second question -- whether the ordinance effects a proscribed taking, as opposed to a reasonable regulation under the police power -- similarly interlaces Indiana and federal decisions, as well as decisions of other state courts. Again, there is no intimation that the conclusion that the ordinance entails "an unlawful and unconstitutional appropriation of property rights without payment of compensation," 244 Ind. at 584, 193 N.E.2d at 242, is based less forcefully on the Indiana Constitution than on the Fourteenth Amendment.
"leaves the impression that the court probably felt constrained to rule as it did because of [decisions applying the Fourteenth Amendment],"
Minnesota v. National Tea Co., supra, at 309 U. S. 554 -555, or "because it felt under compulsion of federal law as enunciated by this Court so to hold," Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1 , 340 U. S. 5 , with the result that the state and federal grounds are "so interwoven that we are unable to conclude that the judgment rests upon an independent interpretation of the State law," State Tax Comm'n v. Van Cott, 306 U. S. 511 , 306 U. S. 514 . See also Perkins v. Benguet Mining Co., 342 U. S. 437 , 342 U. S. 443 , 342 U. S. 448 -449; Enterprise Irrig. District v. Canal Co., supra. Under our settled decisions, the state ground in this case must be regarded as an independent and adequate ground of decision, and we so hold.
"the City of Gary has attempted, by the passage of the ordinance under consideration, to take and appropriate to its own use the ordinarily usable air space of property adjacent to the Gary Airport. . . ."
244 Ind. at 582, 193 N.E.2d at 241. (Emphasis added.) As we read the opinion of the Indiana Supreme Court, it certainly does not portent the wholesale invalidation of all airport zoning laws.
"(4) appropriate action, including the adoption of zoning laws, has been or will be taken, to the extent reasonable, to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport operations including landing and take-off of aircraft."
"either by the acquisition and retention of easements or other interests in or rights for the use of land or airspace or by the adoption and enforcement of zoning regulations."
"[t]here is no basis for a contention that federal law removes State law restrictions on the exercise of the zoning power or defeats any State law right to compensation."
"No man's particular services shall be demanded, without just compensation. No man's property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered."
"[t]he federal government has recognized the requirement that easements for the glide angle needed for landing and take-off must be acquired by condemnation proceedings and payment of just compensation,"
244 Ind. at 584, 193 N.E.2d at 242, but that conclusion was based on two cases condemning easements over property adjoining federal bases that were decided several years before the recent amendment to the Federal Airport Act, United States v. 48.10 Acres of Land, 144 F.Supp. 258 (D.C.S.D.N.Y.1956); United States v. 4.43 Acres of Land, 137 F.Supp. 567 (D.C.N.D.Tex.1956), not on any assessment of the policy of that Act. These circumstances, of course, bar petitioners from seeking reversal of the judgment below on the basis of their preemption claim, and it is therefore questionable whether petitioners may advance the same argument under the guise of an attack on the adequacy of the state ground of decision. We need not consider this problem further, however, because, as is explained in the text, infra , the preemption claim is insubstantial.
Needless to say, we express no opinion in this case regarding the validity under the United States Constitution of the city's airport zoning ordinance.
MR. JUSTICE STEWART, with whom MR. JUSTICE BLACK joins, dissenting.
Although the opinion of the Supreme Court of Indiana relies on state and federal precedents, I can find nowhere in its opinion any clear indication of whether that court's ultimate conclusion is based upon the Federal Constitution, the Constitution of Indiana, or both. Therefore, I think the posture of this case is identical to that presented in Minnesota v. National Tea Co., 309 U. S. 551 , and that we should, as the Court did there, vacate the judgment of the State Supreme Court and remand the cause for further proceedings.
assures that important federal issues such as have been argued here will reach this Court for adjudication, that state courts will not be the final arbiters of important issues under the federal constitution, and that we will not encroach on the constitutional jurisdiction of the states. This is not a mere technical rule, nor a rule for our convenience. It touches the division of authority between state courts and this Court, and is of equal importance to each. Only by such explicitness can the highest courts of the states and this Court keep within the bounds of their respective jurisdictions."
309 U.S. at 309 U. S. 557 .

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