Parent Perspective and Prospective Services Tip the Scales in Evaluating Value of Statutory Settlement Offer

October 2015
Number 59

The Ninth Circuit Court of Appeals has warned districts that an award to parents in a due process hearing which may cost a district less than what it offered in its ten-day statutory offer does not necessarily protect the district from an attorneys’ fee demand. (T.B./Wyner v. San Diego Unified School District (9th Cir. 2015) 2015 U.S. App. Lexis 13365.) The Ninth Circuit made it clear the value of a settlement offer is about more than money.

In the recent case of T.B., ten days prior to the scheduled due process hearing, the San Diego Unified School District (SDUSD) offered T.B.’s parents a long-term settlement proposal in the amount of $150,000 per year for the next five years to end the dispute and avoid litigation. T.B.’s parents rejected SDUSD’s offer.

At hearing, T.B.’s parents litigated fifteen issues, winning on only three. As relief for prevailing on those three issues, the Administrative Law Judge (ALJ) required modification of T.B.’s individualized education program (IEP), modification of T.B.’s transition plan, and reimbursement of transportation costs. Under the fee-shifting provision of the Individuals with Disabilities Education Act (IDEA), Parents sought attorney fees in the amount of $1.4 million as a result of their limited win.

The IDEA prohibits recovery of attorneys’ fees for work performed after a written settlement offer if: (1) the offer is made more than ten days before the hearing; (2) the parents reject it; and (3) the offer is at least as good as the relief the parents secure in the hearing. (20 U.S.C. § 1415(i)(3)(D).) However, an exception exits if the parents are “substantially justified” in rejecting the offer. (20 U.S.C. § 1415(i)(3)(E).)

Using these rules as guidelines, the district court limited T.B.’s award of attorneys’ fees on two independent grounds. The court determined the relief ordered was not more favorable than what the District had offered, namely the $150,000 offered per school year, and that T.B.’s parents were not substantially justified in rejecting SDUSD’s offer. The district court gave five reasons why SDUSD’s offer was more favorable than the ALJ’s award: (1) T.B.’s parents preferred an award of money rather than placement; (2) T.B.’s mother preferred to educate T.B. at home; (3) SDUSD’s monetary offer was “exceptionally generous;” (4) the offer put to rest all disputes for the next five years; and (5) SDUSD’s offer included reasonable attorney fees. As a result, the district court awarded T.B. only $50,260.50 in attorneys’ fees and costs of $5,173.41. T.B. and his attorney of record appealed this decision to the U.S. Court of Appeals for the Ninth Circuit.

The Ninth Circuit rejected the district court’s ruling on both grounds. The Ninth Circuit first reasoned that the District’s offer would have required the parents to arrange – on their own – a complete education schedule for T.B., making the District’s proposal less favorable from the parents’ perspective and establishing that T.B.’s parents were “substantially justified” in rejecting the offer. Additionally, the Ninth Circuit rejected the district court’s rationale for reducing the fees as unreasonable, disagreeing that the demand of $1.4 million was extremely high and the parents’ unwillingness to compromise unreasonable.

Lastly, the Ninth Circuit disagreed with the district court’s determination to reduce fees because the parents lost most of the issues in the due process hearing. The Ninth Circuit noted that “failure on a claim does not automatically reduce the fee award” when the attorney work was beneficial to a successful claim. For all of these reasons, the Ninth Circuit vacated the earlier order and returned the case to the district court for a new determination on attorneys’ fees.

The T.B. decision serves as a warning that school districts should consider the parents perspective when drafting ten-day settlement offers. Although an award at hearing will cost less in strict dollars does not necessarily mean that the district will be protected against an attorney fee demand. The Ninth Circuit has made clear that it does not just come down to dollars and cents.

If you have any questions about this decision, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Sarah L. Garcia
Senior Counsel
Walnut Creek Office
sgarcia@lozanosmith.com

Jennifer Baldassari
Associate
Walnut Creek Office
jbaldassari@lozanosmith.com

©2015 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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Governor Signs Two New Bills Significantly Easing the Ability for Certain Students to Establish Residency and Placing Limitations on Residency Investigations

October 2015
Number 58

On August 11, 2015, the Governor approved two bills pertaining to student residency requirements and residency investigations, both of which will become effective on January 1, 2016. Both of the bills stemmed from media attention to a particular California school where the school district conducted a residency investigation by hiring a private investigator to investigate the residency of a student in the home of their parent’s employer.

Senate Bill (SB) 200 amends Education Code section 48204 by allowing students to establish residency when their parent or guardian resides in the home of their employer during the school week. Specifically, SB 200 allows for a student to establish residency if:

  • The parent or legal guardian resides outside of the boundaries of the school district, but
  • Is employed and lives with the student at the place of his/her employment within the boundaries of the district for a minimum of three days during the school week.

This new way to establish residency allows for live-in nannys/caregivers and others whose children live with them at their place of employment to establish residency if they reside within the district for three or more days during the school week.

Assembly Bill (AB) 1101 adds Education Code section 48204.2 as it relates to all residency investigations. Under this new Education Code provision, school districts are required to adopt a residency verification board policy, during a public meeting, if they will be conducting any residency investigations. While the statute expressly requires the adoption of a board “policy,” a school board may also adopt a corresponding administrative regulation. The policy must:

  • Identify the circumstances under which the district may initiate an investigation regarding a student’s residency.
  • Require that a school district employee be able to identify “specific, articulable facts supporting the belief that the parent or legal guardian of the pupil provided false or unreliable evidence” regarding the student’s residency.
  • Describe the investigatory methods that may be used by the district in conducting the investigation.
  • State whether the district will be using a private investigator in conducting residency investigations. Education Code section 48204.2 states that before a private investigator can be hired, the school district is required first to make “reasonable efforts to determine whether the pupil resides in the school district.”
  • Prohibit the collection of “covert” images (photographs or video) of students who are being investigated-any photographs or
    video must be obtained in open and public view.
  • Require employees and contractors of the district conducting the investigation to identify themselves truthfully.
  • Provide an appeal process.

The foregoing procedures have the potential to limit a school district’s ability to conduct effective residency investigations. Certain common investigatory methods could be disallowed, and investigators may essentially have to put families on notice that they are being investigated, allowing families who falsify residency information more opportunities to protect their fabrication. It is noteworthy that some school districts, including the one subject to the media scrutiny that led to these bills, have experienced fabrications ranging from simple falsehoods about actual places of residence to the sale of addresses on Craigslist and through other sources for the express purpose of falsifying residency. It is not clear whether the Legislature took such circumstances into consideration in passing SB 200 and AB 1101.

In light of the new way to establish residency, school districts should consider revising their board policies and administrative regulations regarding student residency. School districts should also consider whether they will conduct residency verification investigations, and if they plan on doing so, they should adopt a board policy and/or administrative regulation in line with Education Code section 48204.2.

For more information on SB 200 and AB 1101, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Harold M. Freiman
Partner
Walnut Creek Office
hfreiman@lozanosmith.com

Aimee Perry
Associate
Sacramento Office
aperry@lozanosmith.com
©2015 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Affordable Care Act Enrollment Information Update

October 2015
Number 57

As reported previously (See Client News Brief No. 38, July 2015), starting this school year, school districts must provide health care coverage options and enrollment assistance information to new student enrollees pursuant to Assembly Bill (AB) 2706. This requirement will be in effect through the 2017-2018 school year. The California Department of Education (CDE), in partnership with Covered California and All In – Health Care for All Families, provided the following clarifications on AB 2706’s requirements during a recent statewide webinar:

  • The CDE has approved a Flyer template for purposes of AB 2706, which was developed in partnership with Covered California. The template provides a description of health coverage options and current income limits for Medi-Cal eligibility and potential financial help for the purchase of health insurance through Covered California. There is also a customizable space at the top of the form for school districts to include their district name and enrollment assistance contact information. The Flyer template is accessible here.
  • While school districts may include the required Flyer in the annual parental notice and/or parent-student handbook, this document must also be distributed separately, throughout the school year, with any enrollment forms for new students.
  • It is not sufficient for school districts only to include the link to the CDE Flyer on a school or district website.
  • The Flyer will require updates every year to reflect current federal poverty guidelines.
  • The Flyer is currently available in English and Spanish, and the CDE is preparing an additional ten non-English language versions.
  • AB 2706 does not require that school districts identify which students are in need of health care coverage.

For more information on AB 2706 compliance, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Sloan R. Simmons
Partner
Sacramento Office
ssimmons@lozanosmith.com

©2015 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

12 Weeks of Differential Pay Now Available for Certificated Employees on CFRA Maternity/Paternity Leave

October 2015
Number 56

On October 1, 2015, Governor Jerry Brown signed Assembly Bill (AB) 375, which creates a right to twelve weeks of differential pay for certificated employees who take maternity or paternity leave under the California Family Rights Act (CFRA). Until this bill, the CFRA only provided for an unpaid leave of absence for baby-bonding.

Effective January 1, 2016, AB 375 adds Education Code section 44977.5 which establishes the right to differential leave for up to twelve weeks when a certificated employee takes maternity or paternity leave under the CFRA. “Maternity or paternity leave” is defined as leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee. Under AB 375, the right to twelve weeks of differential pay for maternity/paternity leave is reduced by any paid sick leave used during the maternity/paternity leave.

Traditional differential leave under Education Code section 44977 provides partially paid leave for up to five months if a certificated employee is unable to work due to illness, injury or accident after available paid leaves have been exhausted. The new law does not change the calculation method to determine how much an employee is paid during differential leave. While on differential leave, an employee is paid his/her salary minus the amount paid to a substitute hired to replace the employee while on leave. If no substitute is hired, the employee’s salary is reduced by the amount that would have been paid to a substitute had one been hired.

The new differential pay right applies only once for each maternity/paternity leave taken by an employee under the CFRA. However, if a school year terminates before the 12-week leave period is exhausted, the employee may exhaust the balance of his/her differential pay for maternity/paternity leave if baby-bonding leave is continued in the subsequent school year.

To the extent AB 375 conflicts with a provision of a collective bargaining agreement entered into before January 1, 2016, AB 375 shall not apply until expiration or renewal of the collective bargaining agreement.

Notably, no parallel provisions were included in AB 375 to extend these rights to classified employees, even though classified employees are also entitled to traditional differential leave. For the time being, this expansion of paid leave rights is unique to certificated staff.

AB 375 is a new law and there may be impacts or implementation issues that have not been addressed in the legislation or the bill’s legislative history. School employers should watch for further updates in the coming year. Additionally, school districts should be mindful of potentially reimbursable costs that will be generated by this new state mandate, and maintain records for possible submission as a reimbursable mandated cost.

For more on information on AB 375, its implications on leaves, and the complex interaction between federal and California leave laws, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Darren C. Kameya
Partner
Los Angeles Office
dkameya@lozanosmith.com

Michelle L. Cannon
Senior Counsel
Sacramento Office
mcannon@lozanosmith.com

Gabriela D. Flowers
Associate
Sacramento Office
gflowers@lozanosmith.com

©2015 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Local Agency Ordered to Refund More Than Ten Million Dollars for Failure to Comply with Developer Fee Accounting Requirements

October 2015
Number 55

A recent court decision underscores the importance of local agencies complying with accounting requirements related to the collection and use of developer fees. In Daniel Walker v. City of San Clemente ((August 28, 2015) 2015 Cal.App. Lexis 757 (Walker)), the Court of Appeal affirmed a trial court decision finding the City’s accounting and related findings to be inadequate, and requiring that all unspent developer fees be refunded with interest. This case is a reminder that local agencies must not only meet procedural requirements, but must also make findings that are more than mere conclusions.

Local agencies including cities and school districts are authorized to impose fees on development projects in order to defray the cost of new or additional public facilities that are needed to serve those developments. When establishing such a fee, the local agency is required to identify both how it will use the fee and the relationship between the fee’s use and the developments on which the fee is imposed. Upon receipt by the local agency, developer fees must be deposited in a separate account or fund in a manner to avoid commingling the fees with other revenues and funds of the agency.

The Government Code contains explicit accounting requirements related to developer fees. The first is an annual obligation that requires the local agency, within 180 days of the end of the agency’s fiscal year, to make available to the public a report concerning each account that contains funds received from developer fees. The accounting must include specified information including the type and amount of fee in the account, the beginning and ending balance, the amount collected and interest earned, an identification of public improvements on which fees were expended and the amount expended, the approximate date by which construction of a public improvement will commence if sufficient funds have been collected, inter-fund loan information, and any refunds made. The annual accounting information must be reviewed at the next regularly scheduled public meeting that is at least 15 days after the information is made public. (Gov. Code, §§ 66001, et seq.)

In addition to the annual accounting described above, agencies imposing developer fees are also required to make the following findings regarding any unexpended funds at five-year intervals from the first deposit into the developer fee account:

  • Identify the purpose to which the fee is to be put;
  • Demonstrate a reasonable relationship between the fee and the purpose for which it is charged;
  • Identify all sources and amounts of funding anticipated to complete financing of incomplete improvements; and
  • Designate the approximate dates on which the funding described above is expected to be deposited into the appropriate account or fund.

(Gov. Code, § 66006.) The penalty for noncompliance with the five-year accounting requirements can include a mandatory refund of all unexpended developer fees.

In Walker, the City of San Clemente collected nearly $10 million in beach parking impact fees and accrued interest over a 20-year period. The City spent $350,000 of these funds to purchase a vacant parcel of land, but did not construct parking facilities there. The plaintiffs in the case alleged that the City’s five-year accounting failed to make the specific findings required above, and both the trial court and the Court of Appeal agreed. The Court of Appeal emphasized that the City had adopted mere conclusions, rather than reasoned findings.

With regard to the required finding of a reasonable relationship between the unexpended fee and the purpose for which the fee was charged, the Court held that the City’s finding failed to discuss the relationship between the nearly $10 million balance in the fee account and the purpose for which the fee was established, and also failed to demonstrate a reasonable relationship between the unexpended fees and their purpose. The City’s finding failed to say anything about any impact that residential development had on the City’s beach parking in the 20-year period since the City began collecting fees, the current condition of the City’s beach parking, the status of any improvements identified when the City established the fee, or what the City had done in the last 20 years or future plans for public beach parking.

The Court also held that the City failed to make the required finding identifying the sources and funds anticipated to complete financing for incomplete beach parking improvements. With regard to this finding, the City’s accounting stated that “This funding source is anticipated to be sufficient to complete the financing of identified improvements.” The Court held that this finding was acceptable to the extent it limited the sources of funding for beach parking improvements to the beach parking impact fee, but that it failed to give sufficient detail. The Court confirmed prior law that the City could have generally identified by type or category the public facilities it intended to acquire or construct, and that specific construction or improvement plans were not required.

For the last required finding concerning designating the approximate dates when the City anticipated receiving funding for incomplete improvements, the City’s accounting stated “Not applicable.” The Court found this to be an inadequate conclusion.

Based on the Court’s holding that the findings in the five-year accounting were inadequate, the Court upheld the trial court’s judgment ordering the City to refund approximately $10.5 million in unexpended impact fees and accrued interest to the current property owners on whom the fees were imposed.

It is important for local agencies to complete their annual and particularly their five-year accounting obligations, and to make sure that those accountings contain the proper information and that there are findings made as required by law. The accounting requirements are often particularly challenging for school districts, as the requirements often do not fit neatly with how such districts operate. It is often advisable for local agencies to consult with their legal counsel regarding adopting fee studies, accounting reports, and necessary findings prior to taking such actions, to ensure compliance with the controlling laws.

School districts may be interested in Lozano Smith’s publication, Developer Fee Handbook for School Facilities: A User’s Guide to Qualifying for, Imposing, Increasing, Collecting, Using and Accounting for School Impact Fees in California. The handbook is designed to assist school districts in dealing with numerous developer fee issues and can help reduce legal costs by providing comprehensive information regarding California law and the process for school impact fees. The handbook contains procedures, timelines, checklists, and forms related to developer fee accounting. At this time, Lozano Smith is continuing to make the handbook available to school districts at no present cost. The handbook is updated regularly; school districts that order or have previously ordered the handbook will be sent the updates at no charge. For more information on the Developer Fee Handbook, or to order a copy, click here.

If you have any questions regarding the Walker case or developer fee issues in general, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Harold M. Freiman
Partner
Walnut Creek Office
hfreiman@lozanosmith.com

Kelly M. Rem
Associate
Walnut Creek Office
krem@lozanosmith.com

©2015 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Overturns School Closure Decision Based on Insufficient Evidence to Support a CEQA Categorical Exemption

October 2015
Number 54

In a recent decision, a California appellate court voided a school district’s action to close two schools and transfer the students to other schools based on the court’s finding that the district did not comply with the California Environmental Quality Act (CEQA). The district had found the closure and transfer to be exempt from CEQA, but the court held that there was insufficient evidence in the record to support that finding. The case is a reminder of the importance of having a strong supporting record when concluding an activity is exempt from CEQA.

CEQA is subject to both statutory and categorical exemptions. One statutory exemption often relied upon by school districts is found in section 21080.18 of the Public Resources Code, which states that CEQA does not apply to the closing of any public school in which kindergarten or any of grades 1 through 12 is maintained or the transfer of students from that public school to another school if the only physical changes involved are categorically exempt from CEQA. The CEQA Guidelines (14 Cal. Code Regs., §§ 15000, et seq.) contain 33 additional categorical exemptions, many of which are also relied on by school districts. One such exemption is Class 14, which consists of minor additions to existing schools within existing school grounds where the addition does not increase original student capacity by more than 25% or ten classrooms, whichever is less. While statutory exemptions are generally absolute, the categorical exemptions are subject to exceptions, including when there is a reasonable possibility that the activity will have a significant effect on the environment due to “unusual circumstances” or “cumulative impacts.” Because the statutory exemption for school closure rests on the further conclusion that any physical result of the closure is categorically exempt, deciding whether the closure is subject to CEQA review will usually hinge on whether a categorical exemption applies.

In Save Our Schools v. Barstow Unified School District Board of Education (September 2, 2015), 2015 Cal.App. Lexis 779 (Save Our Schools), the school district addressed financial complications and declining enrollment by deciding to close two elementary schools and to transfer the students from those two schools to other receptor schools within the district. In doing so, the district relied on the statutory exemption for closing public schools in combination with the Class 14 categorical exemption for minor additions to schools. A neighborhood group challenged the exemption decision, contending that insufficient evidence supported the district’s determinations that the closures and transfers were exempt. The group further argued that even if the district’s activities were exempt, the “unusual circumstances” and “cumulative impact” exceptions applied, defeating the exemptions.

The court of appeal agreed with the neighborhood group and voided the district’s resolutions approving the school closures and student transfers. The court found that the administrative record did not contain “substantial evidence” regarding the “original student capacity” of any of the receptor schools. There was also nothing in the record indicating that the district would limit the number of students that would be allowed to transfer to a particular receptor school. Based on the record, the court found that it was impossible for the district to determine that the closures and transfers would not increase the total student enrollment of any of the receptor schools beyond the levels allowed by that exemption. Thus, the district was not entitled to rely on that exemption.

The court ordered the district to reconsider its exemption determination, acknowledging that the district would be allowed to accept and consider additional evidence that was not before it when it made the original exemption determination. The court also stated that, if the district is unable to determine that the closures and transfers were exempt from CEQA when they were originally approved, the trial court could provide relief by ordering the district to reopen the schools or to take other steps to mitigate any adverse environmental impacts of the closures and transfers.

The lesson from this case is that, when relying on CEQA exemptions, school districts and other public agencies should ensure that their administrative records contain evidence supporting any criteria set forth in the exemption. The Save Our Schools court repeatedly cites the earlier case of San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School District (2006) 139 Cal.App.4th 1356. That case is illustrative both of many of the legal arguments that are raised against school closure and of the steps that a school district can take to limit its exposure to such legal challenges. Most significantly, in San Lorenzo, the school district had considered the Class 14 exemption by expressly calculating the capacity of its schools, and the court there upheld the school district’s school closure decision.

If you have any questions regarding this case, categorical exemptions, or CEQA in general, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

 

Written By

Harold M. Freiman
Partner
Walnut Creek Office
hfreiman@lozanosmith.com

Kelly M. Rem
Associate
Walnut Creek Office
krem@lozanosmith.com

©2015 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

CalSTRS Employer Information Circular Provides Helpful Reminders of Common Reporting Errors

October 2015
Number 53

CalSTRS recently issued an Employer Information Circular (EIC) containing important reminders of common errors leading to negative audit findings for school districts, county offices of education and community colleges.

The EIC addresses proper reporting for special compensation and clarifies that extra-duty compensation must be reported separately from special compensation. For example, off-schedule bonuses or advanced degree pay are reported differently than coaching pay. This allows CalSTRS to credit such compensation appropriately. Errors in reporting for a particular employee could lead to an overpayment during that employee’s retirement that the District may be partially liable to repay.

The EIC also provides information on the proper reporting of unused sick leave for service credit. For example, when reporting service credit, school districts must use caution in providing CalSTRS with the correct number of an employee’s “base contract days” (i.e., length of the work year) to avoid artificially inflating or deflating the employee’s retirement allowance.

The EIC further addresses a school district’s obligations when hiring retirees or contracting with vendors who hire retirees. In particular, school districts are required to notify CalSTRS retirees of the earning restrictions and report to CalSTRS compensation paid to them. This is true regardless of whether the retiree is employed by the District directly, is hired as an independent contractor, or is working as an employee of a third-party vendor. While some exceptions do apply, they are complex and should be analyzed on a case-by-case basis.

A copy of the EIC, Vol. 31, Issue 3 is available here. Lozano Smith attorneys are available to provide guidance on creditable service, creditable compensation and other pre- and post- retirement employment issues for CalSTRS and CalPERS members, including those discussed in the EIC.

Lozano Smith attorneys are also available to assist you in reviewing Board Policies, Administrative Regulations, collective bargaining agreements and administrator contracts to ensure compliance with CalSTRS and CalPERS regulations. In particular, we are able to assist school districts in determining whether to restructure administrator contracts in light of the December 31, 2015 deadline (see Client News Brief No. 21, April 2015). If you have any questions about CalSTRS/CalPERS retirement issues, or how retirement laws govern public schools and their employees, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Michael Smith
Partner
Fresno Office
msmith@lozanosmith.com

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.com

Ashley N. Emerzian
Associate
Fresno Office
aemerzian@lozanosmith.com

©2015 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.