The Wisconsin Health Care Quality Improvement Act (“WHCQIA”), part of Wisconsin’s recently enacted tort reform bill, has revised Wis. Stat. § 146.38 to broaden peer review protections for health care providers. Section 146.38, which provides for the confidentiality of information generated or obtained during peer review or evaluation, has been expanded by WHCQIA to apply confidentiality protections to a wider range of providers, communications and proceedings.

Under WHCQIA, Section 146.38 now expressly provides that various related entities participating in those peer review processes will be afforded confidentiality protections. These statutory protections now expressly encompass peer review-related communications involving the many types of persons and entities defined as “health care providers” elsewhere in Wisconsin Statutes (Wis. Stat. § 146.81), but also authorized peer review disclosures of those providers’ employers or the parent, subsidiary or affiliate organizations of those providers or their employers.

WHCQIA has also added a defined term of “incident or occurrence report” to Section 146.38 to clarify that written and oral statements and reports related to an incident, practice or situation at issue in a review or evaluation are expressly covered by the statute’s peer review protections. (It is also worth noting that newly created Wis. Stat. § 904.16 provides similar confidentiality protections with respect to reports that providers are required to submit to certain regulatory agencies).

WHCQIA has not only broadened the scope of peer review protections with respect to the types individuals and entities and communications covered, but also the kinds of proceedings to which those protections apply. Whereas prior to WHCQIA’s enactment, Section 146.38 only provided peer review protections barring the introduction of covered communications and information as evidence in personal injury actions, the statute now prohibits the use of such information in any civil or criminal action.

A complete copy of WHCQIA can be found here.

On Friday, April 8th, Attorney Dizard, as the court appointed receiver of Meadowbrook Country Club, received court approval to sell the 83 year old, 150 acre private country club to a group of local investors for $1.425 million. The sale was essentially the culmination of the receivership of Meadowbrook Country Club which was initially filed in November of 2010 in the Racine County Circuit Court.

Read the full article here.

The Internal Revenue Service has created a safe-harbor election under Revenue Procedure 2011-29 to allow taxpayers to allocate seventy percent (70%) of the success-based fees paid in business acquisitions or reorganization as a deduction against current ordinary income. If the election is made, the remaining thirty percent (30%) must be capitalized. This election can be made for success-based fees incurred in years ending on or after April 8, 2011. This Revenue Procedure clears up the uncertainty that has existed in how to allocate these fees.

In Chilton v. Moser, a Texas Federal District Court overturned a Bankruptcy Court and ruled that an inherited IRA owned by a debtor is an exempt asset and protected under the Bankruptcy Code. This is an important decision. As more and more wealth is accumulated in 401(k)’s and rolled over into IRA’s, these IRA’s are often the most significant assets heirs inherit from decedents. To have these inherited IRA assets protected from the Bankruptcy process, is an enormous benefit for heirs who may be in financial trouble. One cautionary note, although this court decision is persuasive for Bankruptcy Courts in Wisconsin, it is not binding. Nevertheless, the decision should provide some comfort to heirs owning inherited IRA’s who may be subject to creditor concerns.

Jason Scoby was recently quoted in the Wisconsin Law Journal in an article about the proposed Bucyrus-Caterpillar merger. The article, titled “Bucyrus Clears Hurdle in Merger Lawsuits,” describes the Jan. 19 decision by Judge Charles Clevert Jr. of the Eastern District Court of Wisconsin in which he denied plaintiff shareholders’ motion for a preliminary injunction seeking to prevent the shareholder vote to approve the merger. The excerpt containing Jason’s quote reads:

• Attorney Jason Scoby, chairman of the Business, Banking and Corporate Law Section of the Milwaukee Bar Association, pointed out that under relevant case law, the plaintiffs needed to satisfy three requirements: irreparable harm, inadequate traditional legal remedies and a likelihood of success on the merits.
• Scoby, of O’Neil, Cannon, Hollman, DeJong and Laing SC, Milwaukee, said the court clearly explained why the plaintiffs failed to satisfy any of the three requirements.
• “The court could’ve denied the plaintiffs’ motion based on the fact that they couldn’t satisfy the first requirement, that they faced irreparable harm if the injunction was not granted,” he said. “However, the court took care to also hold that the plaintiffs failed to satisfy the other two requirements.”
• In arriving at its decision, the court alluded to the Business Judgment Rule, Scoby said. That rule provides that a court will rarely substitute its own judgment for that of the corporation’s board when the board engaged in sufficient due diligence prior to arriving at its decision.

Read the full article here. The case is City of Sterling Heights Police and Fire Retirement System v. Bucyrus International, Inc., et. al., Case No. 10-CV-1106.

Jason advises individuals and closely held businesses on a variety of corporate and business-related issues, including mergers and acquisitions, commercial transactions, corporate issues, franchising, contract negotiation and preparation, and business entity selection and formation.

O’Neil Cannon, founded in Milwaukee in 1973, is a full-service legal practice that primarily focuses on providing business law and civil litigation services to closely-held businesses and their owners. The firm represents corporations, institutions and partnerships at all stages of the business life cycle, helping them start, grow and transition from one generation to the next. We also assist business owners with their personal legal needs including tax and estate planning, family law and litigation—including personal injury litigation.

Attorney Joseph D. Newbold has joined the litigation practice at the downtown Milwaukee law firm of O’Neil Cannon He will bring with him extensive experience in complex commercial and intellectual property litigation and has significant experience in trial and appellate matters in both the state and federal courts.

Prior to joining the firm, Mr. Newbold was an associate in the Chicago law firm of Freeborn and Peters LLP. While at Freeborn and Peters, Mr. Newbold worked extensively on a wide variety of matters, including representing industry leading patent holders before the Court of Appeals for the U.S. Federal Circuit and individuals standing up against large real estate developers before the Illinois Supreme Court. Mr. Newbold is a former clerk to United States District Judge Joe Billy McDade, United States Magistrate Judge Donald Wilkerson, and former United States Magistrate Judge Gerald Cohn.

O’Neil Cannon, founded in Milwaukee in 1973, is a full-service legal practice that primarily focuses on providing business law and civil litigation services to closely-held businesses and their owners. The firm represents corporations, institutions and partnerships at all stages of the business life cycle, helping them start, grow and transition from one generation to the next. We also assist business owners with their personal legal needs including tax and estate planning, family law and litigation – including personal injury litigation.

Wis. Stat. § 346.89(1) states “[n]o person while driving a motor vehicle shall be so engaged or occupied as to interfere with the safe driving of such vehicle.”

Until December 1, 2010 that was the major focus of the “inattentive driving” statute. On December 1, pursuant to 2009 Wisconsin Act 220, subsections (3)a-b were added to the statute stating that “[n]o person may drive, as defined in s. 343.305(1)(b), any motor vehicle while composing or sending an electronic text message or an electronic mail message.” Exceptions to the statute include (1) operators of emergency vehicles, (2) certain in-vehicle systems (On-Star) that transmit and receive emergency alert messages and messages related to the operation of the vehicle, including global positioning devices, (3) amateur radio operators who hold a valid license issued by the federal communication commission when using dedicated amateur radio 2-way equipment and observing proper operating procedures, and (4) users of voice-operated or hands-free devices if the driver of the motor vehicle does not use his or her hands to operate the device, except to activate or deactivate a feature or function of the device. The penalty for violating Wis. Stat. § 346.89(3) is a fine of not less than $20 nor more than $400, and, because it is a moving violation, 4 points on your drivers license.

What does that mean? It means that a person, while driving, cannot compose (write) or send text messages or e-mails while their car, van, truck, motorcycle, bus or any other motor vehicle is in motion. The focus of this new law has been on the texting aspect of it, but it does include a prohibition against composing and sending e-mails. However, it excludes times when the vehicle is stopped at a traffic light, a stop sign or in traffic due to congestion. It does not prohibit reading messages, or using or surfing the internet. Further, it does not prohibit dialing a phone number, making or receiving phone calls, scrolling through contacts, checking one’s electronic calendar, etc.

Of course, this does not permit inattentive driving. Captain Tim Carnahan of the Wisconsin State Patrol believes that driving distractions, such as texting, are simply dangerous and irresponsible. While state troopers usually give drivers 30 days before enforcing a new law, it will not be the case with the texting or e-mailing while driving ban. Carnahan stated “[t]he law becomes effective on [December 1] and it is entirely possible that someone who is violating that law and is witnessed by our law enforcement would be stopped for that violation.” However, State Patrol Superintendent David Collins noted that the state also has a law against inattentive driving, and that drivers could be ticketed under that law if they are distracted by reading text messages or talking on their cell phones. Collins stated “[t]o be very simple, it’s not illegal to read. But we’re not recommending that. We’re not saying that’s a flaw in the law. We’re just saying use common sense.”

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As part of 2009 Wisconsin Act 220, the Legislature added requirements to the driving curriculum for Technical College Systems, Wisconsin public schools, and Driving Schools that they “[a]cquaint[] each student with the hazards posed by composing or sending electronic text messages or electronic mail messages while driving and with the provisions of s. 346.89(3).”

Milwaukee, Wisconsin (January 31, 2011) – O’Neil Cannon is pleased to announce that Attorney John R. Schreiber and Attorney Joseph M. Maier have been elected as shareholders of the firm.

Attorney Schreiber will continue his practice in the Banking and Creditors’ Rights practice group assisting creditors, commercial landlords and other entities, in the enforcement, collection and workout of loans, leases and other obligations.

Schreiber received his undergraduate Bachelor’s degree from the University of Wisconsin and his law degree from the Marquette University Law School, cum laude. He was selected as a 2008, 2009 and 2010 Wisconsin Super Lawyers Rising Star, Law and Politics and Milwaukee Magazine, and is a member of the Board of Directors for Groundwork Milwaukee.

Attorney Maier will continue to assist businesses in employee benefit design and ERISA issues, executive compensation planning, income tax planning, state and succession planning, operation and liquidation of business entities and the creation, formation, merger and acquisition of businesses.

Maier received his B.B.A. in accounting, summa cum laude, from the University of Wisconsin-Milwaukee and earned his J.D., summa cum laude, graduating #1 in his class from the University of Wisconsin-Madison. He was a member of the UW Law Review and is a member of the Society of Financial Services Professionals.

O’Neil Cannon, founded in Milwaukee in 1973, is a full-service legal practice that primarily focuses on providing business law and civil litigation services to closely-held businesses and their owners. The firm represents corporations, institutions and partnerships at all stages of the business life cycle, helping them start, grow and transition from one generation to the next. We also assist business owners with their personal legal needs including tax and estate planning, family law and litigation – including personal injury litigation.

It is estimated that more than 90% of all information created today is stored electronically.

The Federal Rules of Civil Procedure were amended in 2006 to address such electronically stored information, or “ESI”. Effective January 1, 2011, the Wisconsin Rules of Civil Procedures also are being amended to address ESI and confirm that discovery of ESI stands on equal footing with discovery of paper documents.

The Wisconsin rules have been changed to parallel the federal e-discovery rules and make it easier to utilize existing federal authority in discovery disputes in the Wisconsin courts. But Wisconsin did not adopt the 2006 federal amendments in their entirety. The new Wisconsin rules take a slightly different approach than the federal amendments in two ways: First, some federal rules do not have Wisconsin counterparts. For example, unlike FRCP Rule 26(a), Wisconsin’s new rules make no provision for mandatory disclosure. Second, the drafters of the new Wisconsin rules thought some portions of the federal amendments should be addressed by substantive Wisconsin law, rather than by a procedural rules change.

The new Wisconsin ESI rules are:

• Wis. Stat. § 802.10(3)(jm) (the Wisconsin counterpart to FRCP 16)

This rule is being enacted to encourage courts to be more active in managing electronic discovery. It adds the need for discovery of electronically stored information to the issues that a trial court may address in issuing a scheduling order.

• Wis. Stat. § 804.01(2)(e) (the Wisconsin counterpart to FRCP 26)

This rule is being enacted to help manage the costs of discovery of ESI. It creates a “meet and confer” obligation, and states that no requests for production or inspection of ESI under Wis. Stat. § 804.09 (or responses to interrogatories by production of ESI under Wis. Stat. § 804.08(3)) can be issued until after the parties confer on a number of discovery issues. However, it does not require parties to confer before commencing other types of discovery.

• Wis. Stat. § 804.08(3) (the Wisconsin counterpart to FRCP 33(d))

This rule gives parties the option to produce electronic business records in lieu of an answer to an interrogatory. It specifies that ESI is among the types of business records that a business may provide in response to an interrogatory. But, this is an option; it is not mandatory.

• Wis. Stat. §§ 804.09(1) and (2) (the Wisconsin counterpart to FRCP 34)

These rules are the heart of the new electronic discovery rules. They govern the formulation of electronic discovery requests and responses and establish the scope and procedures regarding the discovery of ESI. They treat ESI the same as paper documents.

• Wis. Stat. § 804.12(4m) (the Wisconsin counterpart to FRCP 37)

This rule provides a “safe harbor” for the good faith, routine deletion of ESI and gives limited “immunity” from certain spoliation sanctions.

• Wis. Stat. § 805.06 (the Wisconsin counterpart to FRCP 53)

This is not a new rule, but rather its use in ESI matters is suggested by the comments to the new Wisconsin rules. It allows for the use of discovery referees or “special masters” to handle complex and/or expensive discovery issues, including those involving ESI.

• Wis. Stat. § 805.07 (the Wisconsin counterpart to FRCP 45)

This rule adds ESI to the types of materials which may be discovered by subpoena.

For more information about these new amendments to the Wisconsin Rules of Civil Procedure, contact Grant Killoran at O’Neil Cannon at 414.291.4733 or grant.killoran@www.wilaw.com.

The President has signed into law the new tax legislation which recently passed through Congress. Generally, the new tax law extends the existing tax rates for two more years, provides a two percent reduction in the payroll tax, and increases the estate tax exemption to $5 million. An additional provision in the legislation, which has been given very little attention in the public media, increases the gift tax exemption to $5 million beginning in 2011. Prior to this, the gift tax exemption was $1 million. This change will give individuals significantly greater flexibility in their estate planning. The $1 million gift ceiling was a hindrance to many individuals who wished to do comprehensive estate planning. With this exemption raised to $5 million, $10 million per couple, the estate planning options become much more diverse and will allow significantly more freedom to individuals to do planning.