Mondaq Business Briefing back issues from May 2003:
Supreme Court Tightens Limits On Punitive Damages.
May 01, 2003; ... By Gregory A. Bibler and Robert H. Fitzgerald This month the U.S. Supreme Court tightened constitutional constraints on the discretion of state courts to impose punitive damages in tort cases. In State Farm Mutual Automobile Insurance Co. v. Campbell,123 S.Ct. 1513 (2003), the ...
New California Data Security Law to Have Broad Reach.
May 01, 2003; ... By Mary J. Hildebrand and Jacqueline Klosek Recent amendments to California's Civil Code will require companies to notify their customers of certain computer security breaches. Significantly, the law, referred to as S.B. 1386, will apply to any online business having customers ...
Japan Structured Finance.
May 01, 2003 ... This article was prepared by lawyers from Freshfields, Bruckhaus Deringer Executive summary In Japan there is an increasing trend towards using special purpose vehicles incorporated in Japan under the Japanese Securitisation Law as issuers in securitisation ...
Pinsent Curtis Biddle Becomes Pinsents - Officially.(Brief Article)
May 01, 2003 ... Leading national law firm Pinsent Curtis Biddle has announced that from 6 May 2003 it is to be become Pinsents. The firm, which ranks in the top 10 of UK legal advisers to listed plcs, regards the change of name as a natural evolution. "Pinsents is what we're ...
Reporting Period: January 03 - March 03 - Enforcement Policy And Legislative Developments.(annual report from Swiss Federal Competition Council)
May 02, 2003 ... Annual Report of the FCC. On February 4, 2003, the FCC held its annual press conference and published its annual report. During the year 2002, the FCC focused on combatting vertical agreements as well as on repressing anti-competitive practices in the financial sector. On February 18, ...
The SEC Attorney Conduct Rules.
May 02, 2003 ... The SEC has adopted new rules that establish standards of professional conduct for all attorneys who handle securities law matters on behalf of public companies. These standards, mandated by the Sarbanes-Oxley Act of 2002, take effect on August 5, 2003. The attorney conduct ...
SEC Adopts Final Rules Requiring Listing Standards for Audit Committee Independence and Powers.
May 02, 2003 ... As required by Section 301 of the Sarbanes-Oxley Act of 2002, the Securities and Exchange Commission adopted final rules on April 9, 2003 directing the national securities exchanges and associations (principally the NYSE, AMEX and Nasdaq) to prohibit the listing of any security of a ...
One-Sized Corporate Governance Doesn't Fit All.
May 03, 2003 ... By Cathy Quinn, Partner, Minter Ellison Rudd Watts What's right for the United States ... In the wake of the collapse of Enron and WorldCom and with the wounds of the tech-wreck still fresh, the quest to achieve better corporate governance and provide greater investor ...
Vinson & Elkins Expands Telecommunications Practice.
May 07, 2003 ... (Washington, D.C.) May 6, 2003 - Vinson & Elkins announced today that five lawyers will join the firm's telecommunications practice in the Washington, D.C. office. Mark N. Lipp and Henry Rivera will join V&E as partners, Michael D. Berg and J. Thomas Nolan as Of Counsel, and Edgar Class ...
Shipping.(Cayman Islands is ideal site for registering ships)(Industry Overview)
May 07, 2003 ... The strategic location of the Cayman Islands, at the center of the Caribbean Sea, make the Cayman Islands an ideal site for ship registration. The Cayman Islands Shipping Registry is the Maritime Administration of the Cayman Islands. The Administration of the Cayman Islands ...
Obtaining A Banking License in the Cayman Islands.(Industry Overview)
May 07, 2003 ... The Cayman Islands are now among the world's leading offshore banking centres and have over five hundred (500) licensed banks and trust companies, including 45 of the world's top 50 international banks. Bank and Trust companies represent 65 different countries in the world, including the ...
Drug Patents - A Necessity.
May 07, 2003; ... Authored by Jidesh Kumar M.D., Associate, Intellectual Property Department, Kochhar & Co. The establishment of Trade-Related Intellectual Property Rights (TRIPS) regime establishes new disciplines for many countries in copyright, trademarks, industrial designs and patents. ...
More than One Way to Skin a Patent Under DOE: Vitiation in Lieu of Estoppel.
May 07, 2003 ... In a spring 2001 decision, the U.S. Court of Appeals for the Federal Circuit affirmed a summary judgment of no doctrine of equivalents infringement of a Lockheed Martin satellite control patent by Space Systems/Loral (SSL), in view of an amendment based estoppel. Lockheed Martin Corp. v ....
FinCEN and Federal Functional Regulators Issue Final USA PATRIOT Act Customer Identity Verification Regulations for Banks and Mutual Funds.
May 07, 2003 ... The Financial Crimes Enforcement Network ("FinCEN") of the Department of the Treasury and the 7 federal functional regulators (FRB, FDIC, OCC, OTS, CFTC, NCUA and SEC) issued final regulations (the "Regulations") under Section 326 of the USA PATRIOT Act concerning the requirement that ...
OIG Issues Final Pharmaceutical Compliance Program Guidance.
May 07, 2003 ... On April 28, the Department of Health and Human Services Office of Inspector General ("OIG") issued its final version of the Compliance Program Guidance for Pharmaceutical Manufacturers. In addition to a discussion of the components of an effective compliance plan, this Guidance, like the ...
PCR Taq Polymerase Patent Obtained as a Result of Inequitable Conduct, But Is it Enforceable?
May 07, 2003 ... The U.S. Court of Appeals for the Federal Circuit, affirming several basis on which the district court found inequitable conduct, remanded the case for a determination as to whether the incidents of inequitable conduct justify the sanction of unenforceability. Hoffman-La Roche, Inc. v ....
Medicare Reimbursement For New Heart Device Expected To Fall Short.
May 07, 2003 ... On April 24, 2003, the Food & Drug Administration ("FDA") approved a new device for use in angioplasty procedures, called a drug-eluting stent. The new drug-eluting stent prevents restentosis, or reclogging of the artery, a common problem with traditional bare-metal stents that often ...
TSBME Adopts Changes To Telemedicine Informed Consent Requirements.
May 07, 2003 ... On April 18, 2003, the Texas State Board of Medical Examiners ("TSBME") published amendments to the telemedicine regulations in the Texas Register. Under the amendments, physicians physically located outside of Texas, but providing provided patient care services initiated in Texas, must ...
Financial Security for Decommissioning Costs in the UK North Sea.
May 07, 2003; ... by John C. LaMaster, Managing Partner and Christopher Prior, Partner Vinson & Elkins, London As the UK North Sea matures, new entrants in particular, smaller independent companies seek to explore and develop existing acreage. Consequently, the UK government, acting through the ...
Merger and Scenes a Faire Doctrines Yield "Thin" Copyrights.
May 07, 2003 ... In decisions issued six days apart, two panels of the U.S. Court of Appeals for the Ninth Circuit addressed the scope of copyright protection in instances where ideas and standard elements predominate over individual expression. In both cases, the Ninth Circuit found the works to be only ...
Without Side-by-Side Comparison Copyright Owner Cannot Prove Infringement.
May 07, 2003 ... The U.S. Court of Appeals for the Fifth Circuit has ruled that a plaintiff's failure to produce a copy of the copyrighted work, thus preventing a side-by-side comparison with the alleged infringement, precludes an infringement claim3/4evidence of direct copying notwithstanding. Bridgmon v ....
Registration of Clip Art Compilation Protects Underlying Works as Well.
May 07, 2003 ... Reversing a district court summary judgment, the U.S. Court of Appeals for the Fourth Circuit has now held that the compilation copyright registration for two software clip-art packages was sufficient to provide copyright protection to the underlying preexisting works in the compilations ...
Written Description: It Isn't Just for Priority Anymore.(Moba B.V. and FPS Foodprocessing Systems Inc. v. Diamond Automatin Inc. case gets a ruling)
May 07, 2003 ... Heralding a possible en banc consideration of the written description rule from the 1997 Eli Lilly case, and further eroding that rule, the U.S. Court of Appeals for the Federal Circuit affirmed denial of a motion for judgment as a matter of law (JMOL) of a jury verdict of validity in a ...
Claim Construction Error and Factual Dispute Precludes Summary Judgment.(Bio-Technology General Corp. v. Duramed Pharmaceuticals Inc. case gets a ruling)
May 07, 2003 ... The U.S. Court of Appeals for the Federal Circuit held that infringement may exist if evidence establishes that a "menstrual shift" occurs after a woman begins taking the accused contraceptive product, such that the use of the accused product after an initial period of time results in a ...
An Earlier Patent Naming Some (But Not All) Inventors in Common with Later Case May Not Be Invention "By Another".
May 07, 2003 ... The U.S. Court of Appeals for the Federal Circuit has now held that listing an earlier-issued patent in an Information Disclosure Statement (IDS) does not automatically result in a finding that such earlier-issued patent is [section] 102(e) prior art to the later application. Where there ...
New Procedures for Applicant Initiated Interviews at the USPTO.(U.S. Patent and Trademark Office)
May 07, 2003 ... New procedures for applicant initiated interviews at the U.S. Patent and Trademark Office (USPTO) are described in the February 2003 revisions to the Manual of Patent Examining Procedure (MPEP). Now, when an applicant initiates a request for an examiner interview, an Applicant Initiated ...
In Internal Investigations, Cooperation Is Key.
May 07, 2003; ... By Clifford Thau and Gregory Zimmer Originally published in the New York Law Journal In the wake of well-publicized corporate failures and the heightened responsibilities imposed on corporations, their officers, directors, and professionals by the recently enacted ...
House Bill 4 - Senate Style.(Tort reform bill)
May 07, 2003 ... Last week, Senator Bill Ratliff significantly revised his substitute for HB 4, the tort reform bill currently before the Texas Legislature, and planned to take public testimony on the bill yesterday and today. Many significant changes were made to the House version, including the ...
Significant Improvements To SB 11 Have Already Been Signed Into Law, And Others Are Well On Their Way.
May 07, 2003 ... The Texas Legislature enacted SB 11 in 2001, which would have imported HIPAA provisions into state law and expanded their application to anyone who comes into possession of protected health information ("PHI"). SB 11 also added research standards that conflicted with the HIPAA research ...
House And Senate Name Conferees For HB 1.(General Appropriations Bill)
May 07, 2003 ... The House and the Senate have named the following conferees to the General Appropriations Bill (HB 1), which went to conference on May 1, 2003. Conferees for the House are Rep. Talmadge Heflin (R-Houston) - Chair; Rep. Vilma Luna (D-Corpus Christi) - Vice Chair; Rep. Jim Pitts ...
JSM Helps Tsingtao Brewery to Conclude a Landmark Convertible Bond Issue.(Johnson Stokes & Master)
May 07, 2003 ... On 1st April, 2003, Tsingtao Brewery issued to the world's largest brewer the first two tranches of the mandatorily convertible bonds worth of US$116M, which will increase the holding of Anheuser-Busch in Tsingtao Brewery from 4.5 per cent at present to 20 per cent over seven years. The ...
Case Study: B&Q Direct.
May 07, 2003 ... B&Q Direct's online transactional website, www.DIY.com, was launched in January 2001. By March 2003 it had become one of the largest stores in B&Q and its continued rapid growth will soon make it the biggest store in the group. The site sells a range of 14,000 products and is already the ...
Mayer, Brown, Rowe & Maw LLP Closes $350 million 10 year Eurobond for Kazkommerts International B.V.
May 07, 2003 ... Drew Salvest, Capital Markets partner at Mayer, Brown, Rowe & Maw LLP, represented the issuer and Kazkommertsbank (Kazakhstan's largest bank) in a 10 year Rule 144a/Regulation S offering of 8.5% notes due 2013 for Kazkommerts International B.V. which was guaranteed by JSC Kazkommertsbank ....
Employment Update: Spring 2003.
May 07, 2003 ... FLEXIBLE WORKING On 9 January 2003 the Government published the final version of the Flexible Working (Procedural Requirements) Regulations 2002 and Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002. These Regulations will come into force on 6 April 2003 ...
Employment Changes from May 2003 - Paternal Rights and Flexible Working.
May 07, 2003 ... All change for April 2003 New regulations are being introduced via the Employment Act 2002 which come into force in April 2003. The significant changes are to parental rights and flexible working requests. On these two subjects, given that new and prospective mothers ...
Means-Plus-Function: What's the Corresponding Structure?
May 07, 2003 ... The U.S. Court of Appeals for the Federal Circuit recently reversed a district court's construction of two means-plus-function claim elements because the construction improperly included not only the circuit, but also the signals that the circuit used to perform the claimed function ....
Sport Update: Merchandising; Photographic Rights and Image Rights.(UK sports industry)
May 07, 2003 ... MERCHANDISING: ARSENAL -v- REED IN THE EUROPEAN COURT OF JUSTICE AND IN THE HIGH COURT (FOR THE SECOND TIME) When the case of Arsenal Football Club plc -v- Matthew Reed came before Mr Justice Laddie in April 2001 he found that whilst Mr Reed was not passing-off his replica ...
Drug Patent Not Infringed Based on Deference to Patentee as Lexicographer.(decision of the U.S. Court of Appeals for the Federal Circuit )
May 08, 2003 ... The U.S. Court of Appeals for the Federal Circuit, in a case that turned on the narrow construction given to one of the claim terms, affirmed a grant of summary judgment that a generic fenofibrate composition did not infringe Abbott Laboratories' patent for a therapeutic fenofibrate ...
Manufacturer/Retailer Product Safety Legal Alert.
May 08, 2003 ... Retailer Exposure to Fines Under CPSA The U.S. Justice Department and the Consumer Product Safety Commission (CPSC) announced on April 25, 2003, that Wal-Mart Stores agreed to pay a civil penalty of $750,000 to settle a lawsuit for failure to report "immediately" a defect in ...
Spam a Hot Topic at FTC Workshop and on The Hill.(highlights of Federal Trade Commission workshop on "spam"; legislative proposals)
May 08, 2003; ... By Ronald L. Plesser, James J. Halpert and Stuart Ingis On April 30-May 2, the Federal Trade Commission hosted a three-day workshop to address "spam." The workshop consisted of 12 panels: (1) discussions on the definition of spam, (2) e-mail address gathering, (3) falsification ...
Furniture Legal Alert.(North Carolina Federal Court applies copyright law to furniture design "knock-offs")
May 08, 2003 ... Federal Court in North Carolina Applies Copyright Law to Furniture Design "Knock-offs" A recent federal court decision from the Middle District of North Carolina has added federal copyright law to the list of concerns which furniture manufacturers should have in "knocking off" ...
Required Filings Of Earnings Releases And Non-GAAP Financial Information.(effect of Regulation G on public disclosures)
May 08, 2003 ... At the end of January, we issued a Client Alert summarizing the SEC's new Regulation G. These new rules concern earnings releases and the use of non-GAAP financial information and became effective at the end of March. Since most public companies will be issuing first quarter earnings ...
Mergers And Acquisitions Legal Alert.(Delaware Supreme Court invalidates "lockup" in merger agreement in Omnicare Inc. v. NCS Healthcare Inc.)
May 08, 2003 ... Divided Delaware Supreme Court Invalidates "Lockup" in Merger Agreement In Omnicare Inc. v. NCS Healthcare Inc., the Delaware Supreme Court jeopardized the continued use of lockups as deal protection devices in transactions involving a Delaware target corporation. In a 3-2 ...
Voluntarily Dissolve Previously Recorded Notice of Contract and Later Record Another to Re-Establish Your Lien Rights.(Massachusetts Supreme Judicial Court affirms remedial nature of Massachusetts Mechanics Lien Law)
May 08, 2003 ... The Massachusetts Supreme Judicial Court (SJC) affirmed the remedial nature of the Massachusetts Mechanics Lien Law, M.G.L. c. 254, et seq., for contractors and held that a contractor can dissolve a previously recorded notice of contract and later record another notice of contract to ...
Expert Testimony on Mold's Potential Health Effects Met Frye Test.(discusses Nebraska Supreme Court decision)
May 08, 2003 ... The Nebraska Supreme Court reversed the trial court's exclusion of expert testimony regarding the potential hazards of the presence of certain molds found indoors. Mondelli v. Kendel Homes Corporation et al, 262 Neb. 263, 631 N. W. 2d 846 (2001). In 1992, the Mondelli's took ...
When Is Subcontractor Fraud Imputed to the General.(Court of Federal Claims decision in N.R. Acquisition Corp. v. United States)
May 08, 2003 ... The Court of Federal Claims has held that fraudulent acts of subcontractors will not be imputed to general contractors for purposes of the "special plea in fraud" statute unless (a) the general contractor was aware of or complicit in the fraud, or (b) the general contractor's claims are ...
UCC Applied to Equipment Design and Manufacture Contract.(Uniform Commercial Code; Miami-Dade County, Florida, and Montenay Power Corp. case against Infilco Degremont Inc.)
May 08, 2003 ... Miami-Dade County, Florida, owns a resource recovery plant operated by Montenay Power Corp. As part of a retrofit of this plant, Montenay and Birwelco-Montenay, an affiliate, contracted with Infilco Degremont, Inc. to design and manufacture well water treatment system equipment for the ...
Institutions Not Subject to Punitive Damages Under Title IX.
May 08, 2003 ... Educational institutions are not subject to liability for punitive damages for private actions brought to enforce Title IX, the U.S. Court of Appeals for the Fourth Circuit has held in vacating a $2 million punitive damages award to former Duke University place kicker Heather Sue Mercer ....
NCAA Places Division III School on Probation.(Salem State College)
May 08, 2003; ... By Michael L. Buckner and J.D. Smeallie The NCAA Division III Committee on Infractions has placed Salem State College on two years' probation for violations in the institution's men's soccer program. The case, which is the first major infractions case involving a Division III ...
Separation of School and State Essential to Maintenance of a Safe and Secure Learning Environment on Campus.(Supreme Court of New Hampshire decision in case of State of New Hampshire v. Adam Nemser discussed)
May 08, 2003 ... One of the primary duties of any school administration is to provide and maintain a safe and secure learning environment that is free of drugs, crime and other illegal or disruptive behaviors. The question is often asked, "To what extent should a school involve local police in its efforts ...
California Supreme Court Gives Two Victories to Employees.(in cases involving disability discrimination and mandatory employment arbitration agreements)
May 08, 2003 ... In a matter of a week, the California Supreme Court gave employees two victories in cases concerning disability discrimination and mandatory employment arbitration agreements. Disability Discrimination In Colmenares v. Braemar Country Club, Inc. (February 20, 2003), ...
Decree Nbr. 988 - Regulation of Tax Over Personal Assets Regarding Shares and Company Security Holdings.
May 09, 2003 ... Decree Nbr. 988/2003 issued last April 28, has regulated the application of Tax over Personal Assets regarding shareholdings in local corporations, whenever such holdings are owned by individuals domiciled in Argentina and by individuals or legal entities domiciled abroad. Such tax shall ...
It Affects You! Florida's Smoke-Free Workplaces Amendment.
May 09, 2003 ... Amendment 6, the Florida Smoke-Free Workplaces amendment that was approved in the November 2002 general election, will affect virtually every business in Florida. Amendment 6 was entitled "Protect People from the Health Hazards of Second-Hand Tobacco Smoke by Prohibiting Workplace ...
Consent Decree Requires Training and Anti-Discrimination Policy.
May 09, 2003 ... An Illinois federal court, in a consent decree resolving a disability discrimination case, has required the employer to train both managers and human resource staff, and to issue an antidiscrimination policy. As part of the consent decree, the employer was also required to pay the ...
Is Your Business Still "Small?": New Rules Require Contractors to Re-Certify Their Size Status.(series of new administrative rules)
May 09, 2003; ... By Michelle D. Hertz and David P. Metzger Until recently, newly large businesses could maintain legally their small-business size status on contracts received while eligible as small businesses. A series of new administrative rules requires businesses to re-certify their size ...
U.S. Supreme Court Unanimously Holds Municipalities Liable Under False Claims Act.
May 09, 2003; ... By Christopher A. Myers and Jennifer A. Short On March 10, 2003, the United States Supreme Court held that local governments are "persons" within the meaning of the False Claims Act and can be held liable for violations of the Act. The Court's decision in Cook County, Illinois ...
Dispute Over Famous Rock 'N Roll Rights Reminds Copyright Owners to Reserve Their Rights or Lose Them.
May 09, 2003; ... "Be my, be my baby" is how the Ronettes' chart-busting 1967 rock 'n roll hit began. "It's my baby" was the group's lead singer and founder's, Ronnie Greenfield's, refrain 35 years later when Philles Records claimed ownership rights as producer to "Be My Baby" and dozens of other Ronettes ...
Federal Circuit Clarifies the "Written Description" Requirement in Genetic Engineering Case.("Amgen Inc. v. Hoechst Marion Roussel Inc. and Transkaryotic Therapties Inc." is the case)
May 09, 2003; ... By Rivka Monheit and Patrea Pabst The U.S. Court of Appeals for the Federal Circuit recently issued a decision that modifies and clarifies previous case law regarding the Patent Act's written description and enablement requirements, making it significantly easier to obtain ...
New Privacy Rules Under the E-Government Act of 2002.
May 09, 2003 ... In December 2002, President Bush signed "The E-Government Act of 2002"1 (the Act) with the goal of bringing the government more fully into the electronic age and improving public access to e-government services. While the majority of Act serves as the federal government's blue print for ...
Protecting Trade Secrets at Trial.
May 09, 2003; ... By M. Kristi Wallace Protecting your trade secrets is not simply a matter of making sure your employees do not sneak off with your intellectual property in their laptop computers or that your competitors are not stealing your assets. If your products are challenged at trial and ...
The Future of Confidential Settlements.
May 09, 2003 ... The future of confidential settlements in the wake of increased passage of sunshine laws has taken a new twist. Sunshine laws generally require full public disclosure of settlement terms that affect public safety. The Federal District Court in South Carolina recently passed the most far- ...
Worker Status Is No Way to Pad Your Bottom Line.
May 09, 2003 ... Too often, employers attempt to reduce payroll costs (by avoiding payroll withholdings and contributions required for employees) by converting existing employees to independent contractor status or by having contractors perform work traditionally performed by employees. Such cost-reduction ...
Developer's Substantive Due Process Claim Denied By United States Supreme Court.(Cuyahoga Falls v. Buckeye Community Hope Foundation is the case)
May 09, 2003; ... By Christopher B. Hanback and Leo G. Rydzewski On March 25, 2003, the Supreme Court of the United States issued a decision in a much-heralded developer-rights case that has broad implications for all real property owners. In Cuyahoga Falls v. Buckeye Community Hope Foundation ...
Contract Zoning: Let's Make a Deal.
May 09, 2003 ... When the owners of an energy company wanted to build a 700-megawatt, natural-gas-fired electric generating facility in Bellingham, Massachusetts, on land not zoned for such use under local zoning by-laws, it made a deal with the town. The town would rezone the land and issue all necessary ...
Federal Regulation in the Absence of Prescription Drug Legislation: The Bush Administration's Proposal to Speed Generics to Market.
May 09, 2003 ... For the past several years, in response to the growing public demand for affordable and accessible prescription drugs from the seniors lobby and a growing list of other interested parties, the U.S. Congress has attempted, but failed to add a prescription drug benefit to the Medicare ...