Why have a records program?  Company records programs fail for many reasons, frequently because the records are an afterthought and programs are inconsistently implemented.  As a result, the records leave many gaps, and may tell an inconsistent and incomplete story of your products.  Those gaps can come back to haunt you under many circumstances, including audits, shareholder reviews and litigation.  In those circumstances, others will often view the failure to have good records as an admission that the unreported activities either didn’t happen, or weren’t handled properly.

Good records programs start from a different perspective – what information will help us thrive and succeed as a business?  The records should be part of an integrated program which helps promote your business goals, and which tells the company’s story in the process. The company’s records program should be a core business function that helps ensure timely access to information by the people who need it, promotes focused, critical and innovative thinking within the company, and provides a framework for the consistent application of the company’s design, manufacturing and sales activities. 

What records do we need? 
There is no “one size fits all” answer to this question, because a well-designed records program reflects your business mission, goals and procedures. The program should be designed to promote the processes that will help your business succeed, rather than trying to fit your business into a generic, off-the-shelf program which may not accurately reflect how your company actually works.

There are, however, several key questions which should be answered in your company’s documents:

• What product are you making?  As simple as it may seem, “defining” the product is very important.  Who is it for?  What will your customers use it for?  How will they use it?  These are among the key questions which need to be answered to successfully build and market your products.
• What are the critical issues in designing the product?  Nearly all products have certain critical design issues which should be considered.  The records should reflect that the issues were, in fact, identified, and that the product was ultimately designed  consistent with that analysis. 
• Was “real world” information considered in designing the product?  Information is often available from many sources which may be helpful in achieving a great design.  These include the obvious – governmental regulations and requirements, industry recommendations and guidelines, etc. – but should also include less obvious sources of information, such as the company’s warranty claims history,  customer experiences with similar products, and the experience of your competitors with similar products. 
• Was the design tested?  While this seems obvious, the notion of testing often goes beyond engineering calculations and materials tests. Do you have prior experience with this (or similar designs) which may be helpful?  What happens when consumers actually use your products? 
• Has this information been integrated into the entire design process?  This is a key concept in ensuring that the overall process is focused and efficient.  As you are mapping out, prototyping and testing the design, you should constantly be comparing it with your product “definition,” the information collected from your review of internal and external requirements and “real world” experiences, and the information gained through testing and evaluating the product.  Inherent in the design process is the goal of promoting your customer’s successful use of the product. In the marketplace, that may be what matters the most!
• Are you building the same product that you designed? This is, of course, a huge question.  The company’s records should reflect an overall process of manufacturing and quality controls which ensure the consistency of the product that goes out the door.  Issues for consideration include the ease and consistency of manufacturing methods, making sure there is no “specification creep” in the materials and components being used, mid- and post-manufacturing quality control checks to ensure that critical components are being properly made, etc.
• Have you considered the “real world” (part 2)?  Remember to follow the carpenter’s rule – “measure twice and cut once.”  So, let’s go back to one of the big questions again:  have you taken the steps needed to promote your customer’s successful use of the product?  Does the design continue to meet your product “definition.”  Is the design a good “fit” with your customers?  Is the product easy to use?  Have you provided good instructions, any needed warnings, etc.? 
• Is there anything still bugging you?  If so, it’s probably also bugging someone else (or it will in the future).  Now is the time to address any remaining issues or concerns, and to document what you’ve done, before the product goes out the door.
• Has the process been fully integrated (part 2)?  Hopefully, the answer is “yes.”  But it’s also important to make sure that the next steps – advertising and marketing the product – are also part of this integrated product, starting with the question of whether your advertising and marketing efforts reflect the product’s “definition.”
• Are you keeping track of your customers’ experience with your product?  Your customers are, of course, the ultimate proving ground. Monitoring and using product information throughout the product’s life cycle is among the most important ways to keep your efforts focused on your customers’ needs. 

How long should I keep this stuff?
Given the difficulty of permanently disposing of information and records in the electronic age, the first priority should be to create the right documents and to make sure that information is available when you need it, rather than focusing on getting rid of old documents which are no longer relevant. There are many recommendations for how long various types of documents should be kept, and you should refer to your accountant, attorney and other advisors for recommendations applicable to your business.  In general, product manufacturers should make sure they maintain specific records for the full length of any periods mandated by statute or regulations (such as product recall periods), and that basic design specifications and records are kept for the anticipated useful life of the product.  If challenged in court, it’s always better to have a record of how you designed and built the product.

This sure seems complicated!
As with any manufacturing process, it takes work.  Many companies are already taking these steps, and a review and update of your document program is often a natural part of a continuing process improvement program.  The key to a good document program is that it should match how your company does business. As you review and evolve your document program, make sure it’s tailored to meet the critical goals of providing timely access to information,  promoting focused, critical and innovative thinking within the company, and providing a framework for the consistent application of the company’s design, manufacturing and sales activities.  Ultimately, a good document program should be a core tool in successfully running your business.
 

This H-1B cap limitation does not apply to extensions of H-1B status or those obtaining H-1B status to teach at colleges, universities, related nonprofit or government research organizations or J waiver physicians. There may be limited options for individuals not selected for the H-1B cap depending on the applicants' situations. Please contact us to discuss options.

For those with licenses currently in escrow, different rules for renewal apply, but these licenses must also be renewed, despite the non-active nature of the license. Finally, no exceptions to the renewal rules exist for recently issued licenses: liquor licenses issued in the 2012 - 2013 licensing year must be renewed by May 1 as well.

Typically, the administrative staff of the Michigan Liquor Control Commission will mail renewal packages in the middle of March. The members of Varnum’s Hospitality and Beverage Control Law Practice Group are currently responding to these requests and are handling the renewal of
the licenses for a number of our clients. In the event that you would like to obtain our assistance in this regard, please contact us. We would be happy to review and submit the appropriate documentation to the State of Michigan in order to assure that your license is properly renewed
and delivered to you on a timely basis to avoid any suspensions of your license.

If you have any questions, please contact a member of the Hospitality and Beverage Control Law Practice Group, including Christopher P. Baker, 248/567-7400, cpbaker@varnumlaw.com.

The 6th Circuit's January 2013 decision in Glazer v. Chase Home Finance LLC (Case No. 10-3416) represents a significant expansion – or confirmation of the reach – of the application of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §1692 et seq. The FDCPA was enacted some 35 years ago with the objective of protecting consumers by eliminating abusive, deceptive and unfair debt collection practices by debt collectors. It generally applies to third party debt collectors, but has the potential to affect a much broader universe.

Attorneys, originally exempt from the purview of the Act, became subject to the Act in 1986 if they otherwise satisfied the definition of a debt collector (15 U.S.C. §1692a(6)) and did not qualify for one of the six statutory exemptions:

any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

As a result, there are certain instances in which attorneys will be considered debt collectors and subject to compliance with the Act (which, among other things, may require lawyers to include in their correspondence with debtors specific language and recitations of debtor's rights to obtain further information and/or copies of the underlying documentation of the debt).

Glazer v. Chase brings the application of the Act against attorneys into stark relief. It involved a claim under the FDCPA against a mortgage servicing company and the law firm it hired to foreclose on property Glazer inherited. While the 6th Circuit upheld the district court's dismissal of the FDCPA claims against the servicer – because the proof showed the servicer entered on the scene when the debt was still current, which qualified for one of the FDCPA exceptions to the "debt collector" definition – it reversed the dismissal against the lawyers. The claim against the lawyers was that they violated the Act by falsely stating that Chase owned the note and mortgage in the foreclosure complaint (apparently, FNMA owned the debt pursuant to an unrecorded assignment, and Chase was solely the servicer), improperly scheduling a foreclosure sale (which was ultimately canceled) and refusing to verify the debt upon the debtor's request.

In upholding the claims against the lawyers, the 6th Circuit cited that the Act was unclear because it failed to define "debt collection" and did not exclude foreclosure or the general enforcement of security interests from its scope. And, the Court rejected what it characterized as the majority view adopted in many district courts that mortgage foreclosure, without a claim for a money judgment in the foreclosure complaint, is not debt collection, but simply enforcement of a security interest.

Despite the absence of a definition of "debt collection" in the Act, the panel examined the Act's definition of "debt" which is defined as "any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes."  15 U.S.C. §1692a(5). Further, the Court focused upon the Act's substantive provisions that debt collection is performed through either "communication" or "conduct" (§ 1692c, d), which it found to be an indication of a very broad view of what could be considered "collection" under the statute. As to the argument that enforcement of a security interest should be distinguished, the panel stated, "The focus on the underlying transaction indicates that whether an obligation is a 'debt' depends not on whether the obligation is secured, but rather on the purpose for which it was incurred," concluding that a home loan was a "debt" whether or not secured.

So, ultimately, the 6th Circuit's holding was that the very purpose of any mortgage foreclosure is to obtain payment on the underlying debt, either by persuasion (a settlement payment) or compulsion (a foreclosure judgment and application of the sale proceeds against the debt), and thus a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings is a lawyer who regularly attempts to collect those debts per the Act. Stated otherwise, if the purpose of an activity taken in relation to a debt is to obtain payment of the debt, then the activity is properly considered debt collection under the FDCPA.

This holding, which is echoed in several recent opinions from the 3rd and 4th Circuits, places real estate attorneys squarely in the path of the FDCPA. And, while there could still be arguments for exemption – if, for instance, an attorney does not "regularly" seek to collect such debts – it strikes this lawyer that a conservative approach is a sounder approach for those of us engaged in any foreclosure activities on behalf of our clients. Ensuring compliance with the Act will require examination of the form and substance of all oral and written correspondence with consumer debtors (including emails) to consider whether or not to append disclaimers or statutorily required language, and diligence in respect of counsel's conduct throughout the foreclosure proceedings…and, no doubt, will generate more food for thought for my General Counsel.

USCIS requires employers to use the new Form I-9 on May 7, 2013, but it may also be used immediately. USCIS will accept prior versions of Form I-9, "(Rev. 08/07/09) Y" and "(Rev. 02/02/09) N", until May 7, 2013.
Please contact us if you have any questions about the new Form I-9.
 

Employers must use Form I-9 to verify new hire identity and employment authorization eligibility. Employers are not required to complete new Form I-9s for existing employees with earlier versions of Form I-9 completed.  The new Form I-9 should be used for reverification, rehire or name change purposes for existing employees.

The new Form I-9 contains several revisions designed to minimize errors in form completion, adds data fields including the employee's foreign passport information (if applicable) and optional telephone and email addresses, improves the form's instructions, revises the layout of the form, and expands the form from one to two pages. 

Please contact us if you have any questions about the new Form I-9.

These new lawsuits follow a wave of similar suits brought by the same plaintiffs' attorney against financial institutions operating in western Pennsylvania and Ohio.  The two Michigan lawsuits specifically quote a March 2012 Wall Street Journal article that claims that nearly 50 percent of the more than 400,000 ATMs in the United States are inaccessible to the visually impaired, despite the fact that new standards regarding accessibility of ATMs for the visually impaired went into effect on March 15, 2011.  Under these new standards, all ATMs were required to be upgraded to meet the new requirements by March 15, 2012.  Among other items, the new ADA requirements mandate that ATMs be speech-enabled, such that all operating instructions, visible transaction prompts, input verification, and error messages are accessible by individuals with impaired vision.  In addition, the ADA ATM requirements call for specific input controls, mandate a particular layout for numeric keypads, and provide specific requirements for the display screen.

For further information regarding these lawsuits or the ADA requirements for ATMs, please contact Ronald DeWaard, Brion Doyle, any member of Varnum's Banking Services Practice Group, or your Varnum attorney.