Mondaq Business Briefing back issues from October 2008:
Cargo Security.
Oct 01, 2008 ... Following September 11, the United States Customs and Border Protection ("CBP") agency was charged with the mission of developing anti-terrorism programs to help secure U.S. borders.1 One threat identified by the agency is containers manipulated for the purpose of terrorist attacks ....
Green Ache(rs): Insuring Your Sustainable Construction Project.
Oct 01, 2008 ... Previously published with Inside Indiana Business "Green" construction means different things to different people, but it seems that every owner, developer, property manager, elementary and higher education campus, employer, and board room wants a "green" building. Contracts and ...
UKBA Clarifies Compliance Officer Procedures, Acknowledges Ambiguities In Business Visitor Category.(UK Border Agency)
Oct 01, 2008 ... From November 2008, the U.K. will implement a radically new immigration system for "migrant workers"—the term given to all workers from outside the European Economic Area and Switzerland. This update covers some of the recent developments in the evolution of the new system, along ...
The Elusive Implied Term Of 'Trust And Confidence'.
Oct 01, 2008 ... The Supreme Court of South Australia recently became the first court in Australia to award damages for the breach of an implied term of trust and confidence in an employment contract. The Court awarded $392,850 plus costs in favour of an employee who made a claim for breach of ...
Parties Should Proceed Warily Over War Clauses.
Oct 01, 2008 ... Recent tensions in the Caucasus have dominated shipping headlines. With Georgia and Russia both bordering the busy waters of the Black Sea and a significant amount of international trade in this area, there is apprehension over physical safety and the potential effect of any trouble on ...
European Commission Launches Investigation Into Biodiesel Imports.(Brief article)
Oct 01, 2008 ... In May's edition of this bulletin, HFW reported on the request by the European Biodiesel Board (E.B.B.) to the European Commission to initiate trade remedy action against biodiesel imports from the U.S.A. on the grounds that they are subsidised and dumped. The complaint was specifically ...
Employment Law Commentary, September 2008.
Oct 01, 2008 ... In this issue: Political Discussion in the Workplace: Small Talk or Big Problems? Disciplining Employees Involved in Political Advocacy Under the NLRA Upcoming Speaking Engagements Political Discussion in the Workplace: Small Talk or Big ...
IRS To Send Questionnaires To 400 Colleges And Universities Nationwide.(United States. Internal Revenue Service)
Oct 01, 2008 ... As part of its 2008 Work Plan, the IRS announced that its Exempt Organizations Compliance Unit would send compliance questionnaires to about 400 colleges and universities. IRS officials recently stated that the questionnaires will be sent within the coming weeks. The IRS seeks ...
Private Equity Investments In Bank Holding Companies: The Fed Expands And Clarifies Opportunities.
Oct 01, 2008 ... On September 22, 2008, the Federal Reserve issued a new policy statement that expands the ability of private equity funds, hedge funds, and other investors to make meaningful investments in bank holding companies and banks without subjecting themselves to regulation under the Bank Holding ...
Pensions Update - September 2008.
Oct 01, 2008 ... ADVOCATE-GENERAL ADVISES ON UK DEFAULT RETIREMENT AGE The Advocate-General has issued his opinion in the "Heyday" case which challenges the "default" retirement age in the Age Discrimination Regulations allowing employers to retire employees from age 65 subject to certain ...
Prior Art Anticipates A Functional Limitation That Is Inherent.
Oct 01, 2008 ... Judges: Bryson, Archer, Prost (author) [Appealed from E.D. Mo., Judge Perry] In Leggett & Platt, Inc. v. VUTEk, Inc., No. 07-1515 (Fed. Cir. Aug. 21, 2008), the Federal Circuit affirmed the district court's grant of SJ of invalidity that certain claims of U.S. Patent ...
Will TSX SPACs Restore The Canadian IPO Market?(Initial public offerings)(Special Purpose Acquisition Company )
Oct 01, 2008 ... The TSX has proposed rule changes to permit US-style SPAC listings in Canada. A SPAC is a 'special purpose acquisition corporation' formed to raise a minimum of $30 million to pursue an 'as yet to be identified' acquisition opportunity. If the new TSX rules are implemented, they may help ...
The Elevated Standard Of Proof In The Inequitable Conduct Context Remains Paramount.
Oct 01, 2008 ... Judges: Michel (author), Schall, Dyk [Appealed from D. Md., Senior Judge Garbis] In Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., No. 07-1448 (Fed. Cir. Aug. 25, 2008), the Federal Circuit reversed the district court's finding that U.S. Patent Nos. 6,202,649 ...
IRS Issues Revenue Procedure On Securities Lending.
Oct 01, 2008 ... Developments Of Note IRS Issues Revenue Procedure on Securities Lending SEC Issues Guidance on Treatment of Loaned Securities under Regulation SHO SEC No-Action Letter Permits Banks to Acquire Asset-Backed Commercial Paper from Affiliated Money Market ...
Corporate And Financial Weekly Digest - September 26, 2008.
Oct 01, 2008 ... SEC/Corporate Robert L. Kohl, Mark A. Conley, Palash I. Pandya and Kamilah K. Smith SEC Issues Emergency Order to Temporarily Amend Rule 10b-18 of the Exchange Act On September 18, the Securities and Exchange Commission issued an emergency order to temporarily amend ...
Recounting Passing Off In The "SUPERBRIGHT" Verdict.
Oct 01, 2008 ... The common law offence of passing off has occupied a prominent place in trade mark litigation. Alleging S.B. Equipments of a passing off offence, Atul Rawal filed a suit and moved to seek an ad interim injunction to restrain S.B. Enterprises from manufacturing, selling, marketing, ...
Deccan Declined: Trial Court Order Upheld.(Case overview)
Oct 01, 2008 ... The prevailing intellectual property scenario is infused with litigation hovering around the well-established tenets of deceptive similarity and passing off. While the principles remain cited and stated, parties do not hesitate to vouch their stand while asserting their right at various ...
Impact Of International Financial Reporting Standards On Canadian Registrants.
Oct 01, 2008 ... On September 12, 2008, the Canadian Securities Administrators (CSA) released Staff Notice 33-313 International Financial Reporting Standards (IFRS) and Registrants reminding registrants that international financial reporting standards (IFRS) will be effective on January 1, 2011 and will ...
The Foreign Corrupt Practices Act: Walking The Fine Line Of Compliance In China.
Oct 01, 2008 ... Congress enacted the Foreign Corrupt Practices Act ("FCPA" or "the Act")1 in 1977 in response to the Watergate scandal. Extensive media exposure of unreported campaign contributions and potentially illegitimate payments to foreign officials prompted the Securities and Exchange Commission ...
Exchange-Traded Funds In A Nutshell.
Oct 01, 2008 ... An exchange-traded fund (ETF) is an investment vehicle that allows investors to buy an entire basket of securities through a single security. ETFs track and aim to replicate the returns of a particular stock market index, some of which are well known indices such as the S&P/TSX 60, while ...
State Law Tortious Interference Claim Was Preempted By Federal Patent Laws Because The Claimant Could Not Show That The Patentee Acted In Bad Faith In Enforcing Its Patents.(Case overview)
Oct 01, 2008 ... Judges: Gajarsa, Plager (author), Dyk (concurring) [Appealed from M.D. Fla., Chief Judge Fawsett] In 800 Adept, Inc. v. Murex Securities, Ltd., Nos. 07-1272, -1356 (Fed. Cir. Aug. 29, 2008), the Federal Circuit reversed the district court's judgment of infringement ...
Seventh Circuit Bars Rescission Class Actions In TILA Cases.
Oct 01, 2008; ... Article by Jeffrey Sarles , Scott A. Anenberg , Jeffrey P. Taft and Lucia Nale Originally published September 25, 2008 Keywords: Seventh Circuit, class actions, Truth in Lending Act, TILA, Andrews, Chevy Chase Bank, mortgage lenders, assignees, mortgages ...
Say Goodbye To "Plus On-Road Costs".
Oct 01, 2008 ... Trade Practices Amendment (Clarity in Pricing) Bill Who will this affect? Any business that uses component pricing On 25 September 2008, the Federal Government introduced into parliament the Trade Practices Amendment (Clarity in Pricing) Bill to amend the Trade Practices Act ...
VAT Focus - A Round - Up Of Recent VAT - Related Developments.(Value-added tax)
Oct 01, 2008 ... Changes to VAT services in Ireland Smith & Williamson recently merged with the Irish firm of accountants and tax advisers, Oliver Freaney & Company. As a result, we have enhanced our expertise in Irish tax and VAT issues. In this issue, we outline some potential Irish VAT issues ...
New York Passes New Law Requiring Environmental Disclosure.
Oct 01, 2008 ... In December 2008, a new law in New York will go into effect requiring property owners and landlords to disclose the results of environmental testing to current and prospective tenants. While New York is the first state to enact legislation of this type, we wanted to pass along this ...
OHS Defence Fails: Demotion Of Employee For Poor Literacy Skills Found Discriminatory.
Oct 01, 2008 ... Key Point This decision illustrates how discrimination and occupational health and safety issues can arise when managing a diverse workforce. In the recent decision of Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217 the New South Wales Administrative Decisions ...
Seventh Circuit Holds Rescission Cannot Be Pursued On A Class-Wide Basis Under TILA.
Oct 01, 2008 ... On September 24, 2008, the Seventh Circuit joined the growing chorus of Circuit Courts that have held that a class action cannot be certified for rescission claims under the Truth in Lending Act ("TILA"), 15 U.S.C. s. 1635. Andrews v. Chevy Chase Bank, No. 07-1326. The Andrews court held ...
Whitecap Leisure Ltd v John H. Rundle Ltd [208] EWCA Civ 1026: The Modern Approach To Litigation Costs.(Case overview)
Oct 01, 2008 ... "Anyone with any sense knows that litigation is expensive. Anyone with any sense knows that litigation is more expensive than one's worst fears. Anyone with any sense would avoid litigation. Commercial men should look at their balance sheet rather than the pleadings." The ...
A Case For Domestic Hedge Funds In India?(Column)
Oct 01, 2008 ... A few months back, I had the opportunity to read V. Umakanth's working paper on hedge fund regulation in India (available on Mondaq and Hedge Fund Law Review). Umakanth, in his paper sets out a framework for banking and capital market regulators, the RBI and SEBI respectively, to regulate ...
Remote Gaming In Malta.
Oct 01, 2008 ... Malta permits the establishment and operation of companies engaged in remote/online gaming activities (such as casino-style games, poker, sports betting, betting exchanges, P2P, skins, lotteries, and software vendors which take commissions on wagers) through all types of technologies ...
The Hidden World Of Policy Arbitration.(Reprint)
Oct 01, 2008 ... Reprinted with permission from the September 2008 issue of Risk Management Magazine. Copyright 2008 Risk and Insurance Management Society, Inc. All rights reserved For the last couple of decades, arbitration has been heralded as a cheaper, more efficient and more expedient way ...
Regulation Of Credit Default Swaps.
Oct 01, 2008 ... Here we go again! Calamitous events are often catalysts for regulatory change. The market crash of 1929 spawned a spate of such changes, including the separation of investment banks and commercial banks under the Glass-Steagall Act of 1933 (relaxed in 1999 under the Gramm-Leach-Bliley Act) ...
Father Refused Permission To Take Sick Child To Hospital Makes Good His Discrimination Claim.(Case overview)
Oct 01, 2008 ... Key Point Men are more prepared to raise issues in the workplace about balancing work and non-work commitments. There is an interesting development in the law. More so than ever before, men are making complaints about discriminatory treatment in the workplace arising ...
Privacy Law in Australia: The Status Quo.
Oct 01, 2008 ... Traditionally Australian law has not recognised any general "right to privacy". A number of existing areas of law deal with different aspects of what might generally be regard as an individual's "private life". These include defamation law, certain criminal laws such as those relating to ...
SEC Amends Rule 12g3-2(b) Registration Exemption For Foreign Private Issuers.
Oct 01, 2008 ... Originally published September 25, 2008 Keywords: SEC, Rule 12g-3-2(b), Section 12(g), foreign private issuer, securities registration, over-the-counter market, disclosure The US Securities and Exchange Commission (the "SEC") has adopted changes to its rules that ...
Proposed TSX Rules For SPACs.(Toronto Stock Exchange)(special purpose acquisition corporations)
Oct 02, 2008; ... Following an emerging trend in the United States, the Toronto Stock Exchange has published for comment proposed amendments to the TSX Company Manual that would allow special purpose acquisition corporations (SPACs) to be listed on the TSX. A SPAC is a holding or "shell" company, ...
The SEC Is Making Institutional Investors Swear.(Securities and Exchange Commission)
Oct 02, 2008; ... By all appearances, the SEC has armed its staff with authorization to use a powerful weapon in its current efforts to "root out" manipulation in the securities and credit default swaps of financial institutions. On Friday, September 22, 2008, the SEC announced that, "Hedge fund managers, ...
ASIC Action On Short Selling - Where To From Here?(Australia. Securities and Investments Commission)
Oct 02, 2008; ... On Sunday 21 September ASIC took further emergency action in response to bans on short selling of stocks imposed by regulators in other global financial centres. This has had immediate consequences for hedge funds, with Standard & Poor's Funds Services putting 57 funds 'on hold' today. The ...
Report Released On Australian Market For Retail Tenancy Leases.
Oct 02, 2008; ... In late August the Productivity Commission released its eagerly awaited report on the Australian retail tenancy market. The Commission's inquiry and subsequent report stemmed from concerns among small retail tenants about a perceived imbalance in bargaining power between them and landlords ...
Short Marriages.(United Kingdom. Parliament. House of Lords)(Law overview)
Oct 02, 2008; ... It may be the society that I keep, but one of the wearisome aspects of being a family specialist is being called upon, when off duty, to justify the present state of the law relating to ancillary relief (not that they ever call it that), and it is the size of awards following a short ...
Amended Short-Selling Orders And Additional Rule Changes To Increase Liquidity In The United States And Canada.(Ontario. Securities Commission)(Securities and Exchange Commission)
Oct 02, 2008; ... The OSC and SEC have issued temporary orders prohibiting short selling of certain financial companies' common equity securities until October 3, 2008.1 Thirteen Canadian cross-border issuers, listed in Appendix A to this bulletin, are affected by the OSC's order. The SEC's order affects ...
IRS Issues Temporary Regulations Eliminating Advance Ruling Process And Making Other Changes To Implement The New Form 990.
Oct 02, 2008 ... Article by Tax-Exempt Organizations Practice Group On September 8, 2008, the Internal Revenue Service issued temporary regulations that eliminate the advance ruling period for new Section 501(c)(3) organizations, thus simplifying the approval process for new organizations ...
Monthly Brief, September 2008.(briefs)
Oct 02, 2008 ... In this issue: Reform of the Finnish Securities Market Act No sanctions on the three largest retail groups in Finland for exchange of confidential information Court of Appeals' Decision on Circumvention of an Effective Technological Measure ...
Criminal Offences And Discrimination In The Workplace.
Oct 02, 2008 ... The Supreme Court of Canada recently handed down a decision in Montreal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse) where it examined the rule, set out in Section 18.2 of the Charter of Human Rights and Freedoms1 (Charter), preventing employers from ...
IRS Issues Revised Foreign Account Reporting Form.
Oct 02, 2008; ... Article by Scott D. Michel1 In an unanticipated development, the IRS posted on its website on September 30, 2008, a new version of Treasury Department Form 90-22.1, named "Report of Foreign Bank and Financial Accounts," and known as the "FBAR." The FBAR has been the focus of ...
New Federal Rule Of Evidence 502 And Possible Litigation Document Review Cost Savings.
Oct 02, 2008 ... On September 19, 2008, President Bush signed Senate Bill No. 2450 into law as Public Law No. 110-322. This law creates a new rule of evidence—Federal Rule of Evidence 502, or FRE 502—limiting certain attorney-client privilege and work product waivers. The rule applies in "all ...
Conflicts Of Interest For Private Equity Portfolio Company Directors.
Oct 02, 2008 ... New statutory provisions governing directors' conflicts of interest will come into force on 1 October 2008. This Commentary provides guidance on the new provisions with reference to investor-appointed directors of private equity portfolio companies and the steps which should be taken in ...
Welcome Decision On The Effect Of Delays In Statutory Disciplinary Procedures.
Oct 02, 2008 ... The Statutory Dismissal and Disciplinary Procedures (SDDPs) apply whenever an employer contemplates dismissing or taking relevant disciplinary action against an employee, irrespective of the employee's length of service. Both the 'standard' and 'modified' SDDPs require the employer to take ...
Disability Discrimination By Proxy.(Case overview)
Oct 02, 2008 ... In Coleman v Attridge Law [2008] Ms Coleman (C) was employed as a legal secretary from January 2001. The following year C gave birth to a son who suffered from apnoeic attacks and congenital laryngomalacia and bronchomalacia within the first years of his life. The child's condition ...
Tribunal Finds Reason For Dismissal Is Different To That Given By Employer.(Williams v. Cheshire Fire and Rescue Services)
Oct 02, 2008; ... Article by Nisha Lalji Paralegal In Williams v Cheshire Fire and Rescue Services [2008] Mr Williams (W) was employed as a firefighter from 3 April 1989 until 9 February 2007, when he was dismissed. W had a poor sickness record and received a number of verbal and written ...
U.S. Treasury Opens Money Market Guarantee Program.(United States. Department of the Treasury)
Oct 02, 2008 ... On September 29, 2008 the U.S. Treasury Department opened its temporary emergency program to insure investor losses of amounts held in participating publicly eligible money market mutual funds as of the close of business on September 19, 2008. The guarantee program is intended to sustain ...
Death Of The Corporate Director And Compulsory Retirement At 16?(Brief article)
Oct 02, 2008 ... From today, every UK company will require to have at least one director who is a natural person (although there will be a grace period of two years for any company that only had corporate directors on 8 November 2006). This means for most companies it will no longer be possible to continue ...
Federal Reserve Makes It Easier To Invest In Banks And Bank Holding Companies.(Federal Reserve Board)
Oct 02, 2008; ... On September 22, 2008, the Board of Governors of the Federal Reserve System (the "FRB") released a policy statement on equity investments in banks and bank holding companies (the "Policy Statement") that addresses when such investments may amount to a "controlling influence" over a bank or ...
Adjudication: No Two Bites At The Same Cherry.
Oct 02, 2008 ... Multiple adjudications are permitted provided they do not relate to the same, or substantially the same, dispute. A referring party cannot make good in a later adjudication the shortcomings in its claim in an earlier adjudication. Doing so would permit it to have two bites at precisely the ...
Regulator Publishes Final Guidance On Conflicts Of Interest And Other Issues.
Oct 02, 2008 ... The Pensions Regulator has now published the final version of its guidance for trustees on dealing with conflicts of interest. The Regulator's approach has not changed significantly from the draft originally issued in February and still identifies five "high level" principles ...
Proposed Changes To The Nominal And Immaterial Transaction Exceptions To Prohibited Related Party Transactions In OSFI Guideline E-6.(Office of the superintendent of financial institutions)
Oct 02, 2008 ... The Office of the Superintendent of Financial Institutions (Canada) ("OSFI") recently requested industry and public comment by October 15, 2008 on changes affecting the materiality criteria for nominal and immaterial related party transaction exceptions. Guideline E-6 – ...
NLRB Clarifies Position On Employer Ban On Use Of Company E-Mail For Union Solicitation.(National Labor Relations Board)(electronic mail)
Oct 02, 2008 ... In an earlier Williams Kastner Alert, published last February, this author discussed the Register Guard decision which upheld discipline of employees who used company e-mail to solicit support for a union. That was a very significant decision since the union had argued that employees ...
SJ Berwin's Community Week.(Brief article)
Oct 02, 2008 ... The latest edition of Community Week is now available on our website. To access this week's edition, please click on the following link: SJ Berwin's Community Week Issue 392 The articles covered this week are: EU developments ...
SEC Amends Short Selling Ban And Reporting Requirements.(Securities and Exchange Commission)
Oct 02, 2008; ... Continuing its stream of emergency actions, the Securities and Exchange Commission ("SEC") announced material amendments late Sunday to the emergency orders issued last Friday prohibiting the short selling of publicly traded securities of 799 financial firms (the "Short Sale Ban Order") ...
Senator Dodd Releases Proposal That Moves Away From Treasurys Minimalist Approach; Representative Frank Issues Alternative Proposal.
Oct 02, 2008 ... On Monday, September 22, 2008, Senate Banking Committee Chairman Christopher Dodd introduced his view of a Treasury rescue of the nation's financial institutions. In short, the Dodd proposal would embellish or deviate from the Treasury proposal in the following ways: Treasury ...
Reverse Payment Patent Settlements: the Interplay of Antitrust and Patent Policies.(Law overview)
Oct 03, 2008; ... While often seen as incompatible, in a proper balance, antitrust and patent laws encourage innovation while promoting commerce, as a goal of each is to provide new and beneficial technologies to the marketplace. Indeed, as Judge Posner explained, "It is not a violation of [the antitrust] ...
The Americans With Disabilities Act Amended To Protect More Individuals.(Law overview)
Oct 03, 2008; ... President Bush has signed into law the ADA Amendments Act (ADAAA), which will go into effect on January 1, 2009. The amendments expand the definition of disability under the ADA by expressly rejecting U.S. Supreme Court case law and Equal Employment Opportunity Commission (EEOC) ...
Are Redeemable Preference Shareholders Creditors?
Oct 03, 2008; ... In Heesh v Baker [2008] NSWSC 711, the New South Wales Supreme Court considered whether the holders of redeemable preference shares could be "creditors" for the purposes of Part 5.3A of the Corporations Act 2001 (the Act). The Facts In July 2006, York Capital Limited ...
Access To Private Equity Funding For Franchisors.
Oct 03, 2008; ... The continued growth in the franchise sector has led to substantial interest by private equity firms looking to make strategic investments in businesses with high growth potential. A number of high profile franchise brands have attracted interest from private equity firms. Given the ...
Not Strictly Mandatory To Consider ESD Principles.(ecologically sustainable development )(Minister for Planning v Walker )(Case overview)
Oct 03, 2008; ... Last week the New South Wales Court of Appeal, in the decision of Minister for Planning v Walker [2008], ruled that it was not a mandatory condition for the granting of development approval that the Minister for Planning (the Minister) consider principles of ecologically sustainable ...