LEGAL PRIMER: 2013 UPDATE August 8, 2013

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1 Eckert Seamans presents LEGAL PRIMER: 2013 UPDATE August 8, 2013 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44 th Floor Pittsburgh, PA phone fax

2 AGENDA 7:45 8:30 a.m. Registration and Continental Breakfast 8:30 8:45 a.m. Welcome & Introductions Professor Mark D. Yochum 8:45 9:15 a.m. Uncertainty at the NLRB: The (Potential) Impact of Two Recent Circuit Court Decisions Andrew T. Quesnelle 9:15 9:45 a.m. Tax Planning: Permanence (at least until Congress acts again!) Portability (Marry! Gift! Kill!...Then repeat!) Planning (Death Tax or Income Tax which is more important?) John Jack F. Meck 9:45 10:15 a.m. Confronting Investigations by Attorneys General Anthony Tony F. Troy 10:15 10:30 a.m. Morning Break 10:30 11:00 a.m. Health Care Reform: What Employers Need to Know Now Sandra R. Mihok 11:00 11:30 a.m. Protecting Your Brand Overseas Laurence S. Rickles 11:30 Noon Noon 1:00 p.m. Hospitality: With Hotels, There s More than Meets the Eye Jay T. Blount, Timothy Q. Hudak and Patricia S. Mahlstedt Lunch 1:00 1:30 p.m. Cyber Smearing Someone Is Not Playing Nice on the Internet Richard E. Peirce 1:30 2:00 p.m. Survey of Significant Attorney Professional Liability Decisions of the Past Year Jason S. Feinstein 2:00 2:30 p.m. Developments in Telecommunications Competition James C. Falvey and Brett Heather Freedson 2:30 2:45 p.m. Afternoon Break 2:45 3:15 p.m. Trends in Mass Tort Litigation Jennifer A. Whelan 3:15 4:15 p.m. The Ethics Business Professor Mark D. Yochum 4:15 p.m. Adjournment

3 TABLE OF CONTENTS Tab A Tab B Tab C Tab D Tab E Tab F Tab G Tab H Tab I Tab J Tab K Uncertainty at the NLRB: The (Potential) Impact of Two Recent Circuit Court Decisions Tax Planning: Permanence (at least until Congress acts again!) Portability (Marry! Gift! Kill!...Then repeat!) Planning (Death Tax or Income Tax which is more important?) Confronting Investigations by Attorneys General Health Care Reform: What Employers Need to Know Now Protecting Your Brand Overseas Hospitality: With Hotels, There s More than Meets the Eye Cyber Smearing Someone Is Not Playing Nice on the Internet Survey of Significant Attorney Professional Liability Decisions of the Past Year Developments in Telecommunications Competition Trends in Mass Tort Litigation The Ethics Business

4 UNCERTAINTY AT THE NLRB: THE (POTENTIAL) IMPACT OF TWO RECENT CIRCUIT COURT DECISIONS Presented by: Andrew T. Quesnelle Associate Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44 th Floor Pittsburgh, PA Andy Quesnelle focuses his practice on labor and employment matters. Andy has practiced in federal and state courts, as well as before the Equal Employment Opportunity Commission, the Pennsylvania Human Relations Commission and the Pittsburgh Commission on Human Relations

5 Uncertainty at the NLRB Presented by: Andrew T. Quesnelle August 8, 2013 The National Labor Relations Board Consists of five members Nominated by the President and (theoretically) confirmed by the Senate Jurisdiction over private employers in interstate commerce and the U.S. Postal Service Can make law in two ways: Deciding cases Rulemaking 1

6 The National Labor Relations Board: Case Decision Process Charges filed by union or company with appropriate regional office Region investigates the charge and may take the matter before an ALJ NLRB reviews decisions of the ALJ Review in the appropriate circuit for that regional office or in the D.C. Circuit The Cloud of Uncertainty How We Got Here December 2007-March 2009 Two members: Wilma Liebman and Peter Schaumber April 2009 President Obama nominates Mark Gaston Pierce, Brian Hayes, and Craig Becker March 2010 President Obama recess appoints Craig Becker quorum restored June 2010: New Process Steel, L.P. v. NLRB NLRB has no power to make decisions without a quorum of three Mark Gaston Pierce and Brian Hayes confirmed by Senate August 2011 Wilma Liebman s term expires 2

7 The Cloud of Uncertainty How We Got Here (cont.) September 2011 Peter Schaumber s term expires. The Board consists only of recess appointment Craig Becker, Mark Gaston Pierce and Brian Hayes January 3, 2012 Craig Becker s recess appointment expires, leaving only Mark Gaston Pierce and Brian Hayes January 4, 2012 While the Senate remains in pro forma session, President Obama gives Sharon Block, Terrence Flynn and Richard Griffin recess appointments. The Board decides over 200 cases in The Recess Appointments Clause [The President shall have power] to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. U.S. Constitution, Article II, Sec. 2 3

8 Invalidation of the Recess Appointments Since the start of 2013, three Courts of Appeals have issued opinions invalidating the President s recess appointments to the NLRB Noel Canning v. NLRB (D.C. Cir. Jan. 25, 2013) NLRB v. New Vista Nursing and Rehab. (3d Cir. May 16, 2013) NLRB v. Enterprise Leasing Co. Se., LLC (4th Cir. July 17, 2013) Noel Canning Appeal from a February 8, 2012 order of the NLRB holding that Noel Canning violated various provisions of the NLRA Court invalidated the Board s decision because the three January 2012 recess appointments were invalid, leaving the Board without a quorum. The appointments were not made during the Recess of the Senate January 4, 2012: the Senate was operating pursuant to a unanimous consent agreement Senate met in pro forma sessions every third business day from December 20, 2011, through January 23,

9 Noel Canning (cont.) 20th Amendment: "Congress must assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January.... During the January 3 pro forma session, the Senate officially convened the second session of the 112th Congress January 4, 2012 appointments were not made during the Recess, meaning the intersession recess. The vacancies did not happen during the Recess of the Senate No recess appointments to positions already vacant when the Recess begins Enterprise Leasing Fourth Circuit also holds that the three January 2012 recess appointments were invalid Based solely on the fact that the appointments were not made during the intersession recess of the Senate. 5

10 New Vista Addressed the 2010 recess appointment of Craig Becker, not the January 2012 recess appointments Invalidated the recess appointment of Craig Becker on the same single ground as Enterprise Leasing: appointment was not made during the intersession recess of the Senate. Ramifications of the Big Three Supreme Court has granted certiorari on the Noel Canning decision Could invalidate every Board decision made without a quorum: All decisions from January 2012 to present All decisions from September 2011 to December 2011 Over 600 total decisions 6

11 Significance to Employers Includes many highly controversial decisions which were bad for employers in a variety of areas Costco Wholesale Corp., 358 NLRB No. 106 (2012) (holding that employer's electronic communication policy that prohibited electronic postings that "damage the Company, defame any individual or damage any person's reputation" unlawfully restricted employees' protected rights); Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012) (holding that employer's handbook rule prohibiting "disrespectful" language or "any other language which injures the image or reputation of the Dealership" was unlawful); Significance to Employers (cont.) Sodexo America LLC, 358 NLRB No. 79 (2012) (holding that employer's off-duty access rule was invalid because the rule granted the employer "unfettered discretion" to determine which employees could access the facility while off duty); Marriott Int'l, Inc., 359 NLRB No. 8 (2012) (holding that the employer's policy of prohibiting off-duty employees from accessing the employer's property without managerial approval was unlawful); WKYC-TV, Gannett Co., 359 NLRB No. 30 (2012) (holding that an employer's duty to collect union dues from employees pursuant to a dues check-off provision continues even after the expiration of the collective bargaining agreement); 7

12 Significance to Employers (cont.) D.R. Horton, Inc., 357 NLRB No. 184 (2012) (holding that employers may not require as a condition of employment that employees agree to a blanket waiver of rights to pursue their employment claims by means of class actions); Alan Ritchey, Inc., 359 NLRB No. 40 (2012) (holding that unionized employers must give the union notice and an opportunity to bargain before imposing discretionary discipline involving demotions, suspensions, and terminations where the applicable collective bargaining agreement does not establish a grievance-arbitration process) Significance to Employers (cont.) NLRB rulemaking during 2012 is in jeopardy Includes the quickie election rule shortening the timeframe for union representation elections 8

13 Where To Go From Here? July 30, 2013: As part of a deal to avert filibuster reform in the Senate, the Senate confirmed five members to the NLRB Renewed Mark Gaston Pierce Added labor lawyers Kent Hirozawa and Nancy Schiffer Added employer-side Republicans Philip Miscimarra and Harry Johnson III Where To Go From Here? (cont.) NLRB stands at 3 pro-labor members and 2 proemployer members Still have all of the decisions from September 2011 to now up in the air Possible solutions Blanket Ratification? Highly unlikely Dubious legality Could not apply to any Board decision from September 2011 to present that was appealed to a court of appeals (and there are many) 9

14 Where To Go From Here? (cont.) Case-by-Case Reaffirmation? Also unlikely Would take an enormous amount of time and resources 4 of the 5 Board members were not present for any of these cases Again, could not apply to any Board decision pending in the Court of Appeals Invalidation? Probably the most practical and likely outcome if the Supreme Court upholds Noel Canning Would mean the invalidation of over 600 Board decisions since September 2011 The Final Word? 10

15 TAX PLANNING: PERMANENCE (AT LEAST UNTIL CONGRESS ACTS AGAIN!) PORTABILITY (MARRY! GIFT! KILL!...THEN REPEAT!) PLANNING (DEATH TAX OR INCOME TAX WHICH IS MORE IMPORTANT?) Presented by: John Jack F. Meck Member Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44 th Floor Pittsburgh, PA Jack Meck has a substantial practice in probate, trust and tax litigation, and beneficiary representation, as well as a broad traditional practice in the areas of trust and estate planning and administration (including related personal income, gift, death and corporate tax issues)

16 Tax Planning: Permanence (At least until Congress acts Again!) Portability (Gift! Marry! Kill!...then repeat!) Planning (Death Tax or Income Tax which is more important?) Presented by: John F. Meck August 8, 2013 PERMANENCE 2001 TO 2009 EGGTRA Estate Tax/GST Exemption increased $1 million to $3.5 million Gift Tax Exemption Frozen at $1 million Rates dropped from 55% to 45% 2010 total repeal Sunset reinstate $1 million exemption/55% rate 2 1

17 PERMANENCE 2010 No Estate or GST tax -OR- Carry over basis 3 PERMANENCE American Taxpayer Relief Act of 2012 Gift Tax Exemption (and thereafter??) $5,000,000 $5,250, (adjusted (indexed for inflation in 2012) for inflation) Annual Exclusion Gifts $13,000 $14,000 (adjusted for inflation) Estate Tax & GST $5,000,000 in 2011 $5,250,000 (adjusted Exemption $5,120,000 in 2012 for inflation) Tax Rate Gift, Estate & GST 35% 40% 4 2

18 Tax Calculation Cumulative Lifetime and then Death Use of Exemption not optional 5 Permanence Income Taxes Single Married Trusts/Estates 39.6% Top Rate $400, $450, $11,950 20% Capital Gains/ Qualified Dividends $400,000 $450,000 $11, % Medicare Tax $200,000 $250,000 $11,950 PHASE OUT Personal $250, $300, N/A Exemption & Itemized Deductions 6 3

19 Medicare Tax 3.8% Net Investment Income ( NII ) Interest, dividends, annuities, royalties, rents & other passive investment income Gain from disposition of property Income from passive activities 469 Trading in financial instruments/commodities Trusts Material Participation?? By Who?? 7 Computation MedicareTax 3.8% Determine NII Determine AGI in excess of $200K/$250K/$11, % on the smaller of the two 8 4

20 None Pennsylvania Gift Tax? 1 year Rule Pennsylvania Inheritance Tax - $3,000 per Donee exemption/calendar year 9 Pennsylvania Inheritance Tax No Exemption Assets Not subject to tax Assets owned jointly with spouse Bequests to charity Life insurance IRAs and plan benefits if under 59 ½ Some plan benefits if over 59 ½ (monthly payments-no ability to take a lump sum) 10 5

21 Pennsylvania Inheritance Tax Rates 0% - Spouses (outright & Sole use trusts unless elect) 0% - Under age 21 (assets to parents) 4.5% - Descendants, step-descendants, ancestors and spouses of children 12% - Siblings 15% - All others 11 Annual Exclusion Gifts $14,000/donee/year indexed Not optional Present interest outright or life estate present value Applied chronologically Crummey Coordination 12 6

22 Annual Exclusion Gifts 2503(c) Trusts Age 21 Custodial Accounts Age 21 Medical and Tuition/GST also Direct payment Don t report No $ limit 13 SPLIT GIFTS Need Spousal Consent on Gift Tax Return TIP FOR SPLITTING Spouses each write a check to avoid filing a Gift Tax Return; if no other Gf Gifts during year 14 7

23 Spousal Estate Planning with Exemption Credit Shelter Trust Rearrange assets prior to death Fund first with exemption amount Avoids death tax on appreciation at second death Balance to Spouse Unlimited Marital Deduction Outright QTIP Trust 15 PORTABILITY OF EXEMPTION DSUEA Unused exemption of deceased spouse Surviving spouse can use: DSUEA plus own $5.25 million exemption Surviving Spouse can use for: Gifts 706 But not GST DSUEA Not indexed 16 8

24 PORTABILITY First Death in 2011 or Later Estate of 1 st spouse MUST file 706!! IRS can examine 1 st 706 at 2 nd death Regulations on valuation 17 PORTABILITY - LAST DECEASED SPOUSE Can t accumulate from multiple spouses BUT for Gifts Can use DSUE 1 st! Use before remarry? Gift! Marry! Kill!...Repeat! 18 9

25 PLANNING Still need Credit Shelter Trust? Uncertainty for 2013 and beyond?? Pros/cons of Credit Shelter Trust vs Portability 19 PLANNING Death Tax vs Income Tax Which is more important? Death Tax on 2 nd Death on appreciation Credit Shelter Trust Basis Step up on 100% at 2 nd Death Sweetheart Will 20 10

26 Credit Shelter Trust Asset Management Creditor Protection PLANNING Assure distribution on 2 nd death Use 1 st Spouse GST exemption No portability % QTIP Trust PLANNING Asset Management, Credit Protection, Control distribution, GST planning AND 100% Basis Step Up AND Income Tax paid from QTIP Not Credit Shelter 22 11

27 100% QTIP Trust PLANNING Is Rev Proc a concern? Flexibility Partial QTIP at 1 st death 23 $5 Million Gift Exemption Benefits of Lifetime Gift Remove income/appreciation (no basis step up) Use of discounts GST Dynasty Trust 24 12

28 Lifetime Uses of $5.25 Million Gift Exemption Forgive family loans Insurance trusts funding up front GRAT QPRT GST Dynasty Trust 25 GRAT - Pros Zero out no use of exemption IRC road map Benefit all income/growth in excess of 7520 rate (2% for August) 26 13

29 GRAT - Cons Death during the term Congressional change of the rules 27 QPRT - Pros Leveraged use of $5 million exemption Only remainder value uses exemption Future appreciation no exemption needed Fractional discount 28 14

30 QPRT Cons Death during term No basis step up FMV rent to children after term 29 Dynasty Trust Use both gift and GST exemptions Grantor Trust status t IRC More powerful than discounts IDGT-Leverage Exemption by sale of other assets to trust t 30 15

31 Questions? Jack Meck (412)

32 John F. Meck, Esquire Eckert Seamans Cherin & Mellott 600 Grant Street 44 th Floor Pittsburgh, PA Phone: Fax: MEMORANDUM RE: Overview of Death Taxes and Basic Estate Planning in 2013 and Beyond You have two death taxes to be concerned about: Pennsylvania Inheritance Tax and Federal Estate Tax. 1. PENNSYLVANIA INHERITANCE TRANSFER TAX. Pennsylvania s Inheritance Tax law imposes a tax on most transfers that occur by reason of death. Currently, no inheritance tax is due on life insurance proceeds, gifts to charity, property that is owned jointly between married persons, or property that is passed on death to or for the benefit of a spouse or from a child age 21 or younger to his or her parents. Qualified plan benefits such as IRAs, 401(k)s, and pension/profit sharing plans may be exempt, in whole or in part, depending upon your age at death and other factors. A 4.5% rate applies to transfers to lineal descendants (i.e., children, step-children, grandchildren, and step-grandchildren, etc. and spouses of children and stepchildren) and ancestors (i.e., generally parents and grandparents). Transfers to siblings are taxed at 12% and transfers to all others are taxed at a 15% rate. 2. FEDERAL ESTATE AND GIFT TAX. Under the Federal Estate and Gift Tax law, each spouse is entitled to an exemption which effectively shields from Gift Tax or Estate Tax the cumulative transfer (both through gifts during life and upon your death) of $5,250,000 of assets (over and above annual exclusion gifts of $14,000 per donee in 2013). So, in a manner of speaking, the first $5,250,000 of every person s estate can pass federal estate tax-free. But every dollar above $5,250,000 is taxed at 40%. Lifetime gifts to a non-citizen spouse are limited to $143,000 annually (the 2013 amount) as opposed to the unlimited marital deduction for gifts to a spouse who is a U.S. Citizen. For both Federal and Pennsylvania purposes, the major death-tax bite will usually occur at the death of the surviving spouse. PLANNING TO MINIMIZE DEATH TAX. The first key concept in federal estate tax planning for married couples is that each spouse should fully use his or her own exemption. The second key concept is that transfers made to a spouse are always tax-free at the time of the transfer (but taxable if those assets are still around when the surviving spouse dies). This is referred to as the marital deduction. There are significant tax savings opportunities available by making use of both spouses exemptions in combination with the marital deduction. To see how these two concepts interact, consider a hypothetical couple whose combined assets are worth $10,500,000 (two times the $5,250,000 amount) and consist of cash (just to {J }

33 John F. Meck, Esquire Eckert Seamans Cherin & Mellott 600 Grant Street 44 th Floor Pittsburgh, PA Phone: Fax: simplify this example) in jointly owned bank accounts. The couple should first divide their assets so that $5,250,000 is in accounts titled solely in the name of the husband and $5,250,000 is in accounts titled solely in the name of the wife. (Incidentally, these accounts could have the non-owner spouse designated as attorney-in-fact to conduct transactions on the account.) Second, both the husband and wife should each have a trust created at death to hold those assets for the benefit of the survivor, taking full advantage of that spouse s exemption and fully shielding the $5,250,000 from Federal Estate Tax. Perhaps the best way to understand this planning process is to consider the results of improper planning. As stated above, in general, anything a person leaves to a surviving spouse will likely qualify for the marital deduction and thus pass Federal Estate Tax-Free upon the death of the first spouse (and nothing would be left to be shielded by the unified credit). So if a couple s Wills leave all assets to the surviving spouse (or if assets are held in the joint names of a couple), then no Federal Estate Tax would be payable on the first death because of the marital deduction. However, 100% of those assets would be taxable on the death of the surviving spouse, shielded only by the survivor s exemption. Only one $5,250,000 exemption (the surviving spouse s) would have been used to offset the total estate tax burden. The first-to-die spouse s $5,250,000 would have been wasted on the first death. This could result in the payment of unnecessary federal estate tax of 40% or more on the wasted amount of such exclusions. The standard technique used to avoid the payment of this additional estate tax is to avoid making a 100% marital deduction gift upon the first death. Instead, you should do the following: (1) Effectively direct the first $5,250,000 (the applicable exclusion amount) to a trust which is held for the benefit of the surviving spouse. The terms of this trust would give the survivor (or the survivor and children, or just the children) substantial economic benefits, but shelter the trust assets so that they are not taxed in the survivor s estate. This is commonly referred to as either a Family Trust or credit shelter or bypass trust or the B fund. (2) Direct that the balance of the estate (i.e., the total estate less the $5,250,000 that passes to the Family Trust) pass to the survivor either outright or through a second trust. This gift would fully qualify for the unlimited marital deduction and would therefore pass estate tax-free on the death of the first spouse. The federal estate tax on this marital gift is not wholly avoided, but rather is deferred until the death of the survivor. However, at least a portion of that deferred tax should be offset by the surviving spouse s exemption. JFM:cms {J } 2

34 John F. Meck, Esquire Eckert Seamans Cherin & Mellott 600 Grant Street 44 th Floor Pittsburgh, PA Phone: Fax: M E M O R A N D U M RE: Your Estate Plan and Portability Based on Congressional action in the first few days of January 2013, we now have some sense of permanency regarding many estate planning rules, at least until Congress decides to act again. We are no longer operating under the specter of having automatic sunset provisions as we have had for the last 12 years. The most notable example involving a sunset provision was the gift and death tax exemption. Before the American Tax Relief Act of 2012 (the Act ), the big concern was that the gift and death tax exemption for each individual was scheduled to automatically revert to $1,000,000 starting January 1, That did not occur and under the current law, the exemption for each spouse in 2013 is now $5,250,000 and is indexed for inflation in subsequent years. Another tax concept that was made permanent under the Act is a so-called "portability rule. Under this rule, if at the first spouse s death, his or her estate is less than the available exemption, any unused exemption can be carried over (but it will not be indexed for inflation) and used by the surviving spouse, which is what is meant by portability. Prior to portability, any unused exemption at the death of the first spouse was lost. Portability allows us to consider a flexible approach with your estate plan which will hopefully allow us to achieve a new basis at the second death on all of your assets (often called a step-up in basis but it can also be a step-down if asset values should decrease, i.e. it s a twoway street). A step-up in basis would be a benefit to your children upon a later sale of your assets since it would reduce the income tax bite. BASIS. Any assets held in the Marital Trust will receive a new basis at the second death. However, any assets held in the Family Trust, funded with the exemption amount of the first spouse to die, do not receive such a new basis at the second death. Thus, if your children later sold Family Trust assets distributed to them following the second death, they would be subject to capital gains on any appreciation after the first death. Our goal would therefore be to reduce capital gains following the second death. One possible new approach to provide flexibility for the surviving spouse when administering his or her spouse s estate involves considering whether to fund the Family Trust at all. Prior to portability being made permanent in 2013, a Trustee would generally first fully fund the Family Trust to the extent of the exemption, now standing at $5,250,000. However with portability, it may be best not to fund the Family Trust at all. Rather, it may be preferable to have 100% of the assets of the first spouse (other than retirement benefits which do not receive a step-up in basis) pass to the Marital Trust which would then receive a new basis at the second death. {J }

35 Some commentators worry that there may be technical tax concerns about over funding the Marital Trust at the first death. We think it is reasonable to believe that this will turn out not to pose a real problem. But even if it is, the traditional approach of funding the Family Trust first can still be utilized. Again, the key to this new design is flexibility so as to be able to take either approach during the administration of the first estate. There is another tax benefit to not funding the Family Trust, but relying on portability instead: During the survivor s lifetime, the income taxes on the assets that would have otherwise been used to fund the Family Trust will reduce the taxable estate of the surviving spouse. Thus, using portability will preserve the exemption of the first spouse to be used entirely against the taxable estate of the surviving spouse. If the Family Trust had been funded at the first death instead, as was prior practice, the exemption used to protect the Family Trust would be dissipated to the extent of these subsequent income taxes paid out of the Family Trust. USING MARITAL TRUST. This new plan (full basis adjustment for all your assets and, at the second death, the income tax benefits described above) could also be achieved by leaving all of the assets outright to the surviving spouse instead of using a Marital Trust. There are both tax and non-tax reasons for still using a Marital Trust. One non-tax reason is that a trust helps to protect the trust assets from creditors of the surviving spouse. A trust also assures that the assets would pass to your descendants at the second death if the surviving spouse should remarry. A tax reason for using a Marital Trust concerns the generation skipping tax (GST). This tax at a 40% rate is in addition to any estate or gift tax on anything passing to grandchildren and great-grandchildren. While each spouse has a $5,250,000 exemption from GST, the unused amount of this GST exemption at the first death is not ported to the surviving spouse as is the unused exemption for estate and gift taxes. By using a Marital Trust rather than distributing assets outright to the surviving spouse, the GST exemption of the first spouse to die can be applied to the Marital Trust. This is generally only necessary when you want to create a dynastytype trust to last for several generations (children, grandchildren, etc.) as opposed to having all of your assets pass outright (at an age or ages selected by you) to children at the death of the surviving spouse. [A QTIP election by the Executor is necessary to qualify the Marital Trust for the marital deduction. If the surviving spouse, as Executor, should make a partial QTIP election, so that the remaining amount would fund the Family Trust, this could be viewed as a taxable gift by the surviving spouse. This gift would occur if the Family Trust has beneficiaries in addition to or other than the surviving spouse, such as your children; or even if the surviving spouse is the sole beneficiary of the Family Trust, if the income distributions are discretionary, compared to the mandatory income distributions to the surviving spouse in the Martial Trust. However, this potential problem could be avoided by having a child or someone else serve with the surviving spouse as a co-executor when this partial QTIP election is made.] 1 1 This paragraph may not be needed for all clients.

36 CONFRONTING INVESTIGATIONS BY ATTORNEYS GENERAL Presented by: Anthony Tony F. Troy Member Eckert Seamans Cherin & Mellott, LLC Eighth and Main Building, Suite East Main Street Richmond, VA Tony Troy focuses his practice on multistate regulatory work, consumer protection, civil litigation, white collar criminal defense and administrative law matters. Previously serving as the Attorney General of Virginia, Tony is well versed in attorney general matters and has developed a practice surrounding client issues with State Attorney General offices. In addition to representing clients in single and multi-state enforcement action by State Attorneys General, Tony's practice also includes commercial advertising, tobacco, antitrust, first amendment litigation, election law litigation and other commercial litigation..

37 MULTISTATE ATTORNEYS GENERAL Investigations and Actions Presented by: Hon. Anthony F. Troy, former Attorney General of Virginia August 8, 2013 Eckert Seamans Cherin & Mellott, LLC Attorney General Team Hon. Anthony F. Troy Former Attorney General of Virginia Hon. LeRoy S. Zimmerman Former Attorney General of Pennsylvania Lynne M. Ross Former Executive Director of National Association of Attorneys General (NAAG) 1

38 Eckert Seamans Cherin & Mellott, LLC Attorney General Team Richard L. Savage, III, Esq. Former Deputy Attorney General and Chief Counsel to three former Attorneys General of Virginia Mark S. Stewart, Esq. Former Deputy Attorney General of Pennsylvania for Consumer Affairs Robert B. Hoffman, Esq. Former Senior Deputy Attorney General of Pennsylvania Background Key Points Emerging Trend Increasingly, state AGs are acting together across party lines in bringing multistate cases in the area of consumer protection (and antitrust). Such actions allow states to share resources and focus on a wide range of industries and practices. With state budgets pared back, multistate actions help conserve resources, both $$ and staff. This is a noted departure from the past, where state AGs largely operated alone. In multistate actions, AGs routinely share complaints/data, conduct joint investigations and coordinate litigation strategy. NAAG, RAGA, DAGA, CWAG 2

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