PART I: U.S. Supreme Court Upholds Affordable Care Act

Some Aspects of the Act Will Take Effect Soon

By Bradley V. Martorana

This Alert is Part I of two Alerts relating to the recent decision of the U.S. Supreme Court upholding most of the Patient Protection and Affordable Care Act ("PPACA" or the "Act").  Part I discusses the decision.  Part II discusses its practical  effects as respects aspects of the Act which will become effective soon.

On June 28, 2012, the U.S. Supreme Court upheld the vast majority of PPACA.  Many of its provisions were effective upon enactment.  Others will not take effect until January 1, 2013 and beyond.  Those provisions will take effect as scheduled unless Congress and the President act to the contrary.  This Alert summarizes the Supreme Court's decision. 

Background and Court Decision.

In National Federation of Independent Business v. Sebelius, the U.S. Supreme Court was asked whether two provisions of the Act were within the U.S. Congress' legislative powers under the U.S. Constitution.  Those two provisions and a preliminary issue are discussed below. 

The Preliminary Issue.

The Court [1] first considered whether it could hear the case.  Under the Anti-Injunction Act, no person may sue to prevent the collection of a tax.  Instead, a person must generally pay the tax and then sue for a refund.  Thus, the Court examined whether Congress intended the penalty imposed by the individual mandate to be a "tax" within the meaning of the Anti-Injunction Act.  The Court reasoned that, because the Act refers to the fee as a "penalty" and not a "tax", Congress must have intended that the fee should not be a "tax" as that term is used by the Anti-Injunction Act.  

The Individual Mandate.

First, the Court was asked to consider whether the "individual mandate" was a valid exercise of Congress' power.  The individual mandate imposes a "penalty" upon individuals who fail to maintain minimum essential health insurance coverage.  For tax years beginning after December 31, 2013, non-exempt U.S. citizens and legal residents who do not maintain that coverage will be required to pay that penalty. 

Predictive Coding - Is it the Way of the Future for Discovery of Electronically Stored Information

By Mike Palumbo

The May 21, 2012, edition of The National Law Journal featured several articles on recent technological and legal trends in electronic discovery. Coincidentally, the Monday, June 18, 2012, edition of the Wall Street Journal (Marketplace Section) also contained a discussion of similar topics. The information contained in these articles is important for lawyers and their clients. The salient points of these articles are summarized herein. The essential message is that, while searching ESI is a complex, costly task, the process is being made more efficient by "technology-assisted research" (TAR).

 "Keyword" searching has been the standard method of culling through massive amounts of electronically stored data. In keyword searching, documents are loaded into a program and lawyers input search terms to find relevant documents.  However, courts and commentators have long recognized the limitations of keyword searches as an efficient means of obtaining relevant documents from ESI. Although many courts have been skeptical of keyword searching, few alternatives have gained general approval of the courts. So, courts and litigants have been looking for an acceptable, efficient computerized review regime that can gain general acceptance. Recently, the focus of that search has been on various forms of TAR, including "predictive-coding", a software tool that uses algorithms to automatically tag documents.

Jennings Strouss Foundation Supports “Leap into Learning” Book Drive

Jennings, Strouss & Salmon, PLC, a leading Phoenix-based law firm, is pleased to announce that the JS Foundation selected Gateway Elementary School in the Creighten School District to be the recipient of its "Leap into Learning" book drive, which was held for four weeks during March and April. The drive served two purposes: 1) provide books to assist in the development of reading skills for first graders and 2) present the school's library with a wide range of classic and popular books to be enjoyed by all students.

The first component of the drive involved working with a first grade teacher to determine which books were needed for her 26 students. Presented with titles covering three reading levels, the Foundation's goal was to purchase enough books so that the students would have their own copy to read in class and then take home to share with their families.

The second component of the drive rallied the support of the Jennings Strouss personnel to purchase new books for the school library from a "wish list" provided by the librarian. A "Leap into Learning" collage was displayed in two of the firm's common areas, with the book titles written on paper frogs. Participants were able to choose which book they wanted to purchase by pulling the designated frog off the wall. They could also opt to make a cash donation.

The drive was a huge success! Thanks to the overwhelming support of the firm's personnel, the 26 first graders received their own book at their reading level and the library was presented with 74 new books, bringing the total donation to 100 books!

Jennings, Strouss & Salmon Expands Phoenix Office with the Addition of Shanna Orlich

Jennings, Strouss & Salmon, PLC, a leading Phoenix-based law firm, is pleased to announce that Shanna N. Orlich has joined the firm as a litigation associate in the Phoenix office.

“Shanna is a talented and enthusiastic individual who brings Wall Street experience to our firm. We are fortunate to have her as part of our litigation team, and I anticipate that she will have a very bright future at the firm,” stated Frederick M. Cummings, Chair of the firm’s Litigation department.

Orlich will focus her practice in the area of complex commercial litigation. Prior to joining Jennings, Strouss & Salmon, she was a trader and analyst in Goldman Sachs’ Capital Structure Franchise Trading Group, which specializes in distressed assets and other litigious special situations.

Raised in Yuma’s farming community, Orlich also has a passion for assisting the agribusiness industry with agricultural and environmental issues, such as food safety.

“Jennings Strouss is a well-respected law firm with a long history of serving the legal needs of Arizona businesses,” stated Orlich.  “I am excited to have the opportunity to work with the firm’s talented attorneys and look forward to contributing to the firm, working with its clients, and being involved in the business and legal communities.”

Orlich earned a J.D. from Columbia University School of Law, an M.B.A with a concentration in Accounting from Columbia Business School, and a B.S.E. in Industrial Engineering from Arizona State University. She currently resides in Phoenix, Arizona.