Nursing Home Staff Falsification of Records

Posted on February 18, 2015 03:32 by Alan R. Jampol

A frequent legal issue faced by nursing facilities is whether it had sufficient staff on hand to care for patients, and whether staff provided care as required by law. As a result, careful record keeping of patient care is necessary, and required, to ensure not only that care given is recorded, but to protect the facility from claims of negligence. Most nursing facilities require staff to not only take careful notes as treatment occurs, but to create weekly summaries of patients’ conditions and events. However, a problem arises when nursing staff are too busy to comply with this requirement. At times, the charting fails to occur at all, or worse, nursing staff create false records.

Often times the duty of creating a weekly summary is assigned to the night shift nurses. Unfortunately, sometimes staff is too busy with patient care to complete their paperwork, which may result in a failure to draft a weekly summary. This results in a patient’s chart containing only entries for care, rather than a summary of the week’s events. The significance of this failure is that it evidences the nurse’s failure to meaningfully review and summarize the patient’s chart. Such a weekly review requires the nurse to take note of the overall care plan of a patient, and any issues or signs that might point to a need to amend the patient’s care plan.

Worse still is the case where a reviewing nurse fails to review and create a weekly summary, and creates a false summary without a legitimate review of the chart. This can result in improper treatment of a patient, as well as a failure in staff to recognize significant issues or stay abreast of recent changes. The weekly summary is an important tool to care givers, and in fact, those providing care of aware of its importance and necessity to providing appropriate care. And such, a failure to maintain a weekly summary or falsification of the summary can evidence of conscious disregard of patient’s needs and of the facility’s duties.

A larger problem occurs when nursing staff not only fail to maintain the weekly summary, but fail to make any treatment notes as required each time a patient is checked on and/or treated. Falsification in this regard can easily be proven, where nursing staff recorded as having provided treatment can be demonstrated through time cards to not have been on duty. Falsification can occur by staff, realizing their failures, and attempting to cover up for themselves. However, more and more frequently such falsification is being committed by administrators who fear costly lawsuits.

While California has a zero-tolerance stance on falsification of records, and such falsification of a medical record is a misdemeanor in California, staff is rarely charged because falsification can be difficult to prove and time consuming to identify. Nonetheless, nursing facilities need to take great care in ensuring its staff is properly maintaining patients’ records to protect against claims of negligence.

In taking a stance against falsification of records, facilities should be aware of the more frequent instances in which it occurs: 1) by overworked or short staffed employees lacking sufficient time to complete paperwork; and 2) to cover up bad outcomes and limit liability. The most important thing a nursing facility can do to help prevent these circumstances is ensure it has sufficient staff on hand to provide proper care to all its patients. Facilities should also hold training sessions to educate staff members regarding record keeping requirements and techniques, as well as falsification of records. Not only should staff be aware that falsification will not be tolerated and of its criminal consequences, but they should also be trained regarding how to recognize falsification by other staff members.

This blog was first posted on Jampol Zimet LLP Insurance Defense Blog. Click here to read the original entry. 

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Categories: Fraud | Insurance Law

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Posted on November 15, 2012 02:17 by Philip M. Gulisano

With the start of the holiday shopping rush just a week away, retailers should be mindful of their responsibility to keep customers safe when large crowds gather to take advantage of well-advertised and highly-anticipated sales. Customers, drawn by the promise of “doorbuster savings” and warned of limited quantities, do not always act in the most courteous manner when rushing to enter the store and running toward the products they desire.  Sadly, it has become all too common for injury, whether accidental or intentional, to occur as customers dash into and through stores during these special sales, and when a customer is injured during the clamor, a retailer can be held liable.

Although the law varies from state to state, in many states, a retailer’s duty to use reasonable care to protect customers from reasonably anticipated injuries includes foreseeing that large crowds might gather due to the advertised sales and that individuals might be injured due to the overcrowding, the congestion at the door, or the unruliness of the other customers.  Consequently, a retailer may be held liable to a customer who is injured due to pushing, crowding, trampling, or jostling by other customers when the retailer conducts a promotional activity or sale that will foreseeably cause crowds to gather and push.

At least one jury has determined that reasonable care when undertaking a special promotion that might cause people to run, push, and shove includes the retailer giving warnings of the dangers involved, taking steps to control or police the crowd, using loud speakers to warn the crowd not to run over people, and warning the elderly or children to stay out of the crowd.    Given the tragedies that have occurred in the past several years during “Black Friday Sales,” it is advisable for retailers to, at the very least, implement the above measures.  However, the above measures may not be sufficient given the particular circumstances of a retailer.  That is why each retailer should conduct a careful risk assessment evaluation that is tailored to its location and history.  This assessment will allow the retailer to develop and implement a plan that keeps its customers safe and happy during this holiday season. Now go shopping!

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Posted on September 27, 2012 02:22 by Philip M. Gulisano

Retailers providing consumers with electronics on a rent-to-own basis face many challenges in ensuring that they are paid for the electronics that they rent.  In particular, computers are small and easy to hide if a retailer seeks to repossess the computer from a non-paying customer.  The temptation to use software that allows the retailer to view where the computer is located and what the renter is doing with the computer is strong, however, the consequences of doing so can be high.  Obtaining information from the computer without the renter’s knowledge or consent not only erodes the renter’s trust and confidence in the retailer, but also opens the retailer up to possible civil and criminal liability.

The recent settlement of charges brought against several rent-to-own companies by the Federal Trade Commission highlights that using software that can log onto a computer, turn on the webcam to take photographs, take screen shots of the computer user’s activities on the computer, and log the keystrokes of the computer user, comes with a price.   According to one news report, civil penalties are not a part of the settlement because civil penalties cannot be imposed for a first violation of the Federal Trade Commission Act.  However, the companies are required to cease using their “spy tools” and, presumably in the future, advise renters of the use of tracking software.  

Further, aside from possible federal action and the costs associated with defending such actions, retailers need to consider possible civil and criminal liability under state laws.  While laws vary from state to state, several states recognize a tort for invasion of privacy, such as intrusion upon seclusion.  Capturing images of a person in a private setting, particularly while engaged in private acts, without the person’s knowledge or consent, may subject a retailer to a civil action.   Even in states that do not recognize a tort for invasion of privacy, under certain circumstances, a person who secretly videotapes an individual engaged in private actions may be liable for the tort of intentional infliction of emotional distress.  Remember that if you use a webcam to take pictures of the area surrounding the computer, you may be capturing images of individuals other than the renters.  Criminal liability is also arguably possible if the state has a statute prohibiting unlawful surveillance and, in some states, there is the possibility, in certain situations, of criminal liability for installing and using key stroke logging software to collect personal information.

If you decide that despite the risks, it is necessary to install and use tracking software, be sure to advise renters of the presence of the software, its uses, and your policy on its use.  The best practice would be to obtain an acknowledgement from the renter, in writing, that the renter was so advised.

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With the preseason underway and the regular season right around the corner, football fans are gathering in front of their TVs and crowding stadiums across the country with copious amounts of food and drink watching the big game.  Legal observers will have their own action to watch although this is likely to last several seasons.    

In 2011, several former players suffering a variety of neurological disorders sued the NFL for negligence and fraud relating to whether the NFL knew and withheld that knowledge that concussions and other head injuries incurred during the playing of football could lead to long term brain damage and related side effects (no comment).  Many of these suits received class action status and were removed to the United States District Court for the Eastern District of Pennsylvania. 

On August 13, 2012, the roster of players on this legal gridiron expanded to include the NFL’s insurance companies.  Alterra America Insurance Company, an excess insurance provider, filed suit in New York State Supreme Court in Manhattan seeking a declaratory judgment stating that Alterra
1) does not have a duty to defend the NFL against player lawsuits
2) does not have a duty to indemnify the NFL against player lawsuits

Two days later, the NFL and NFL Properties filed suit against 32 insurance companies (or nearly every major insurer in the country as reported by Reuters)  including Alterra asking the Court to require these insurers to defend and indemnify the NFL from the players’ suits.  Why so many insurers?  Because the NFL sued nearly every insurer that it has ever had regardless if a current business relationship currently exists.  This is mostly a dispute about when duty to defend triggers.  The NFL in its papers argues it’s when the injury occurs. National Football League v. Fireman’s Fund Insurance, BC490342, California Superior Court, Los Angeles County at 12.  This becomes a bit of problem because different insurers insured the NFL at different times going back to 1963. Determining which injury (if only one) caused the long term damage, when that particular injury occurred and which policy was in effect at that particular time is going to be messy to say the least. 

However, the more interesting story here takes place nearly a week later.  On August 21, Travelers’ Insurance followed “suit” and filed its own action against the NFL and the other insurance companies seeking a declaratory judgment with roughly the same arguments as Alterra.  What makes this interesting is the fine distinction that Travelers’ makes in its papers which is how the other insurance companies become involved.  

Travelers' argues that its only obligation is to NFL Properties and not to the NFL itself (both the NFL and NFL Properties have been parties to these suits).   Travelers’ argues that it never insured the NFL (whom we guess Travelers’ believes is going to take the brunt of any payout either in the form of a judgment or settlement) and therefore shouldn’t have to bear any of the NFL’s costs. Traveler’s suit against the other insurance companies is a pre-emptive strike against its peers who “may dispute Travelers’ position with respect to some or all of the foregoing matters, and make seek contribution from Travelers’ with respect to defense costs and/or indemnity paid under the policies they issued to the NFL and/or NFL Properties with respect [to the players’ law suits].” Discovery Property & Casualty Co. v. National Football League, 652933/2012, New York State Supreme Court, New York County (Manhattan) at 19.

It looks like all the players are in their respective formations… and there’s the kickoff.

[1] Ben Berkowitz, “NFL Sues Dozens of Insurers Over Player Injury Claims.“ Reuters.  08/16/12.  Accessed on 08/28/12.  Available at:

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As a recent post on noted, the Tenth Circuit recently affirmed the convictions of Howard O. Kieffer.  Kieffer, who for several years practiced criminal defense law, had a problem - he never went to law school and had no license to practice law.  A California resident, Kieffer held himself out as a criminal defense attorney via a domain name with a Virginia company, which also hosted the web site.  The government argued that the web site he maintained, which was accessed by two of his victims, in Colorado and Tennessee, was a “wire communication in interstate commerce” sufficient to establish jurisdiction under the federal wire fraud statute.

One aspect, in particular, of the Tenth Circuit decision raises eyebrows.  The issue is what constitutes an interstate wire for the purpose of the wire fraud statute.  The White Collar Crime Professor Blog identified this as a particularly important issue in the cyber-connected world we now live in.  This issue has been evolving for some time, as shown in United States v. Phillips, 376 F. Supp2d 6 (D. Mass. 2005).  There, the court rejected the government argument that “in order to satisfy the elements of the wire fraud offense, it was not necessary to present evidence that the pertinent wire communications themselves actually crossed state lines, as long as the communications (whether interstate or intrastate) traveled via an ‘instrument of an integrated system of interstate commerce,’ such as the interstate phone system.”  More recently, the Tenth Circuit, in United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007), held that one person’s use of the internet, “standing alone” was insufficient evidence that the item “traveled across state lines in interstate commerce.”

Therefore, it is now somewhat surprising to read in Kieffer that the Tenth Circuit changed its position.  The court noted that before the website could reach the local host server, it had been uploaded by Kieffer to the Virginia company, and then transmitted from Virginia to Colorado and Tennessee. Based on those facts, the court held that "[t]he presence of end users in different states, coupled with the very character of the internet” permitted the jury to infer transmission across state lines.  Now, under Kieffer, an allegation that a web site was used to perpetrate fraud would give rise to federal wire fraud jurisdiction in nearly every case.  Stated differently, given the “the very character of the internet,” it is unlikely that a defendant will reside in the same state as his web site host and victims. 

Now, as Paul F. Enzinna noted, unless other courts reject Kieffer, the potential exists for a surge in federal wire fraud prosecutions.  With Kieffer seemingly establishing such minimal interstate contact requirements, it would seem that virtually any viewing or use of a web site could be used to trigger federal jurisdiction.

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In the upcoming Annual Meeting of the ABA, the Commission of Ethics 20/20 will consider amending Model Rule 5.5, which addresses unauthorized practice of law issues.  Of particular concern is the issue of whether the Rule needs to be amended to address whether the proliferation of lawyers' use of technology allows them to maintain a "virtual practice" in a jurisdiction in which they are otherwise not licensed to practice.  The key issue centers around the question of how much "virtual practice" is sufficiently "systematic and continuous" to require an attorney to become licensed in a particular jurisdiction.

If you have seen the draft proposal to amend Model Rule 5.5, which was circulated in September 2011, but sent back to the drawing board because of feedback suggesting that it did more to cloud the issues than to clarify the issues, you probably felt the same way. 

In my humble opinion, at least for the time being, it may be much ado about nothing.  The rule as it stands appears to address most issues, and there probably needs to be considerably more in-depth analysis and study before any tweeking to the Rule occurs.  We've all dealt with pro hac vice issue, serving as and locating "local" counsel when necessary, and electronic filing hasn't really changed the process of being admitted, even if just temporarily, to a particular jurisdiction. Nonetheless, we have all seen how the practice of law has changed over the past ten to fifteen years, particularly as our dependence on electronic communication has multiplied exponentially, and this opinion could change as that dependence grows more and more.


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Last week, the Wall Street Journal Law Blog wrote about a recent New York ethics opinion approving legal advertising on Groupon and other group coupon sites.  These services allow consumers to pay one price up front for a service that is more valuable. A restaurant, for example, may offer a $50 meal for $25 that is paid immediately. An attorney, like this one, for example, may offer to provide a will for $99.  New York wasn’t the first state to weigh in on the issue--South Carolina has, too--and it probably won’t be the last. 

Both New York and South Carolina have approved groupon lawyer advertising per se despite claims that it constitutes the improper sharing of legal fees with a non-lawyer. However, and probably of more practical use to one considering running a groupon lawyer deal, the opinion of each state shows that it is essentially a path fraught with dangerous ethical pitfalls.  For example, New York identified a laundry list of issues aside from fee-sharing that may be implicated in the typical scenario depending on the facts, including improper payment for referral, excessive fees, advertising violations, improper creation of the lawyer-client relationship, conflicts of interest, and improper scope of representation.

With these potential ethical pitfalls in mind, not to mention the questionable effectiveness and taste of such advertising, it is doubtful that legal service groupons will ever become too common. 

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Listen up, all you internet users (which is basically everybody but my mother, who still views the Internet as the work of the devil, and will quote from the book of Revelation in support of her theory).  Three bills you need to be aware of, because they may change the way you view (or more correctly, the way you are allowed to view) the Internet.  and from what I’m reading, there are some pretty darned big sites and companies that are ready to either “go dark” in protest (Wikipedia, for example, which is where I do most of my legal research) or lend a big supporting hand to the protests of the current bills being considered (Google is one – who can live a day without Googling something?  I mean for cryin’ out loud the Company has made itself into a verb!!).  Those bills are:

1.  Stop Online Piracy Act (or “SOPA”).

2.  Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP or PIPA, which is easier but less descriptive.  I’ve never seen a bill with a name so long it requires not one but two abbreviations).

3.  The Online Protection & ENforcement of Digital Trade Act (or “OPEN” Act – again- what is it with thinking up names for these acts? But I guess “OPAENDTA” doesn’t quite roll off the toungue).  

Sounds simple enough, right?  I mean, who doesn’t want to stop people from stealing stuff and using the Internet to get away with it? Uh, hold on--not so fast there, scooter.   Here’s a quick overview, along with the pretty darned serious problems that exist.  The main thought is that there is a serious problem (which there really is) regarding piracy on the Internet.  As paraphrased from the OPEN site ( the problem can be illustrated like this: downloading a movie from a foreign website is like buying a foreign product, but there really aren’t any trade laws equipped to deal with the online purchases from foreign sites.  

The SOPA bill allows the Department of Justice and copyright holders to seek court orders against websites accused of enabling or facilitating copyright infringement.  The court order could include barring online advertising networks and payment facilitators from doing business with the allegedly infringing website, barring search engines from linking to such sites, and requiring Internet service providers to block access to such sites. The bill would make unauthorized streaming of copyrighted content a crime, with a maximum penalty of five years in prison for ten such infringements within six months. The bill also gives immunity to Internet services that voluntarily take action against websites dedicated to infringement, while making liable for damages any copyright holder who knowingly misrepresents that a website is dedicated to infringement.

Proponents of SOPA say it protects the intellectual property market and corresponding industry, jobs and revenue, and is necessary to bolster enforcement of copyright laws, especially against foreign websites.   Opponents say that it violates the First Amendment, is Internet censorship, and will threaten whistle-blowing and other free speech actions. A number of protest actions have been planned, including boycotts of companies that support the legislation, and major Internet companies “going dark” for a day (coinciding with hearing dates).  

PIPA (or ‘PROTECT IP”, or whatever else you want to call it), appears to be SOPA’s twin, but in the Senate.   

OPEN is, from what I can glean, a “bipartisan” bill written in response to the harsh criticism SOPA is receiving. (I always tend to squint my eyes when I see the word “bipartisan”).  
Even the White House has entered the fray, with a post just a few days ago regarding the subject.  Here’s a part of that post:  

Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small.

And when the White House says “whoa”, you know there is likely a heckuva lot of pressure (political, economic, you name it) coming down against the proposed Act.  

So who’s right?  Well, everybody.  Is there a lot of intellectual property piracy on the open internet seas?  Absolutely.  Does it need to be dealt with?  No question.  Do the SOPA and PIPA bills overreach and create more problems than they purport to solve?  Yep.  The bills do use the U.S. Court system to create a type of “internet police” as it pertains to copyrighted material.  They also greatly increase the work flowing to litigators and litigation firms among other things, driving up (WAY up) the cost of doing business, which will most certainly hurt businesses generally and small businesses especially,  because whether they are involved or not, others will be so involved, which will drive up the overall cost of products across the board as the increased cost is passed on to the consumer as much as possible.  And how/why is it that the US Courts will be essentially graced with the responsibility of policing the Internet for the entire world?    
Now that I’ve lit the fire and started the debate, feel free to discuss amongst yourselves (hey- it isn’t my job to give answers, just point out the questions).    
Jeffrey Curran is Of Counsel with Gable Gotwals in Oklahoma City, OK

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The FTC Reins in Facebook

Posted on December 5, 2011 02:03 by Jim Fieweger

In the wild, wild west of the internet, it looks like the Federal Trade Commission is saddling up to play the role of sheriff. On November 29, 2011, the FTC announced its proposed settlement of claims against the social networking goliath, Facebook. (By the way, you can read about it on the Commission’s Facebook page. The settlement resolves an eight-count administrative complaint charging Facebook with misleading their users by telling them they would protect the privacy of personal information, but repeatedly allowing that information to be shared with third parties or made public without the users’ knowledge or consent.  (In the matter of Facebook, Inc., File no. 092 3188.) Coming on the heels of the FTC’s March 2011 settlement of charges that Google, Inc. violated its own privacy promises to consumers when it rolled out its social network site, Google Buzz (In the Matter of Google, Inc., File no. 102 3136), the Facebook case demonstrates the agency is willing to use consumer protection laws to “make sure companies live up to the privacy promises they make to American consumers.”

The FTC’s charges stemmed from representations Facebook made to users regarding their ability to restrict access to personal information they loaded onto the site.  For example, according to the FTC, the company told users they could restrict access to personal data by using a “Friends Only” setting, but in fact, software applications developed by third parties -- “third-party apps” -- and employed by the users’ “Friends” could still access and collect the allegedly restricted data.  Facebook further misled users by telling them that third-party apps could not access data unnecessary to run the apps, and that Facebook would not share information with advertisers.  Neither of those representations was true.  Also, in December 2009, the company allegedly overrode users’ privacy settings when it enacted wholesale changes that public disclosed previously restricted information such as “Friends” lists, without first getting the users’ approval to enact these changes.  (You can read Facebook’s eight alleged deceptions  in the complaint at the FTC’s website -

Under the proposed settlement, Facebook will be prohibited from making any further deceptive privacy claims, from changing the way it shares a user’s data without first obtaining the user’s approval, and from allowing anyone to access a user’s information more than 30 days after the user deletes his or her account.  In addition, Facebook will be required to maintain a comprehensive privacy program intended to address privacy concerns associated with both new and existing products used on its site.  To ensure the existence and proper administration of its privacy program, Facebook will be audited by an independent third party every two years for the next twenty years.  Though the settlement does not impose any monetary sanctions, Facebook could incur fines of up to $16,000 per day if it fails to comply with its terms.  The FTC will take public comments on the proposed settlement through December 30, 2011.  

The FTC’s charges focused on Facebook’s failure to live up to its own representations regarding data security, not the simple fact that it shared personal data with third parties. This tack derived from the consumer protection standards underlying the complaint -- specifically, section 5(a) of the Federal Trade Commission Act, which prohibits "unfair or deceptive acts or practices in or affecting commerce.” (15 U.S.C. §. 45(a)(1)).  (The FTC also is tasked with enforcing the Children’s Online Privacy Protection Act, 15 U.S.C. § 6501 et seq., which imposes restrictions on operators of commercial websites who knowingly collect personal information from children under age 13, but that statute was not invoked in this case.)  
While it is easy to view this decision primarily as a vindication of personal privacy interests -- and in many ways, it is -- it really reflects a victory in the FTC’s efforts to defend consumer rights.  Facebook’s problems arose not from the dissemination of data, but from its failure to live up to its own promises.  Had Facebook not told its users that it would protect certain personal data, or had it simply informed users more fully regarding their December 2009 changes in their privacy practices, it is likely they could have disseminated the data precisely as they did, but avoided their run-in with the FTC.  

Facebook remains under criticism for other data collection practices, such as tracking webpages visited by both members and non-members.  As quoted in USA Today, West Virginia Senator Jay Rockefeller urges the passage of new laws to help consumers “protect their personal information from companies surreptitiously collecting and using . . . personal information for profit.” ( Whether or not those new laws come to pass, the FTC has demonstrated that consumer protection laws already on the books give it some potent guns for policing the internet frontier.

Jim Fieweger is a partner in the Chicago law firm Williams, Montgomery & John.  A former Assistant United States Attorney in the Northern District of Illinois, Jim is an experienced trial lawyer whose practice focuses on commercial litigation and white collar criminal defense.  Jim is a member of the DRI Government Enforcement and Corporate Compliance Committee.

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This week, the FDIC and SEC approved the Volcker Rule and released a draft for public comments.  Bank regulators will have to solidify the Rule in the coming months, as the Rule is set to take effect in July, 2012 – although banks would have three years to comply with the Rule. 

Part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Volcker Rule limits the type of investments that banks can make with their own money.  A result of the financial crisis, the Rule seeks to reign in the behavior that caused banks to fail in 2008.  The Rule is named after former Federal Reserve Chairman Paul Volcker, a man who criticized bank practices long before the financial crisis.  The Rule applies to banks that have government guarantees and may even impose limits on financial companies supervised by the Federal Reserve Board.  

The Volcker Rule places two big limitations on banks.  First, the Rule prohibits banks from owning or controlling hedge funds and private equity funds: a bank cannot own more than three percent of a hedge fund or private equity fund, and cannot invest more than three percent of its capital in such funds.  

Second, the Rule prohibits banks from engaging in proprietary trading.  Proprietary trading occurs when a bank makes trades for its own benefit, rather than for the benefit of a customer.  There are a few exceptions to this rule though, including trades of foreign currencies, commodities, and government bonds.  Additionally, banks can engage in proprietary trading if they are hedging while trading on behalf of a customer.  And banks may still act as market-makers and underwriters.      
The Rule is not without problems though.  Even its supporters claim note that the Rule may not be strict enough, and may contain loopholes.  Also, it can be difficult to draw a line between proprietary trades and trades made for customers.  

Wall Street is certainly not happy with the additional regulations.  Compliance will create new costs; the Rule requires banks to create internal compliance programs overseen by executives.  And Moody's noted that the Rule gives certain companies, like investment firms and offshore banks, a competitive advantage because they are not subject to the regulations.  

At almost 300 pages, the Volcker Rule will likely receive several public comments in the next few months, including some very loud ones from Wall Street.  

William F. Auther is a partner with an active trial practice in business litigation and Kelly M. McInroy is a law clerk in the Phoenix office of Bowman and Brooke LLP.  

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