Mondaq Business Briefing back issues from November 2008:
Investment Funds.
Nov 02, 2008 ... INTRODUCTION The Cayman Islands are becoming increasingly popular as a jurisdiction for the establishment of offshore investment funds. While these primarily involve institutional investors and take the form of private placements, a number of these funds are listed on stock ...
A Review Of ASIC Relief From Financial Reporting Obligations.(Australian Securities and Investments Commission)
Nov 02, 2008 ... The Australian Securities & Investments Commission has this month released Regulatory Guide 43 in relation to obtaining relief from financial reporting obligations under the Corporations Act 2001 (Cth). The Corporations Act generally requires all public companies, large proprietary ...
SEC Adopts Revisions To Its Cross-Border Transaction Exemptions And Beneficial Ownership Reporting Rules.
Nov 03, 2008 ... Introduction On September 19, 2008, the United States Securities and Exchange Commission (the "SEC") published its final rule and interpretive guidance regarding changes to its cross-border transaction rules and beneficial ownership reporting requirements for non-U.S. ...
Canada's New Guidelines For Claiming Consumer Products Are Eco-Friendly.
Nov 03, 2008 ... The environment is on the minds of consumers these days. And in response, a multitude of products and services claiming to be "green" or "eco-friendly" are stacking supermarket aisles. The Trade-marks Register confirms the proliferation of trademarks with an environmental angle: the term ...
FDIC Issues Interim Rule To Implement Temporary Liquidity Guarantee Program.(Federal Deposit Insurance Corporation)
Nov 03, 2008 ... Provides Framework and Operating Details On October 23, 2008, the Board of Directors of the Federal Deposit Insurance Corporation (the "FDIC") announced that it had approved an interim rule under the FDIC's systemic risk exception process (the "Interim Rule") to govern its newly ...
US Election May Affect Patenting.(Brief article)
Nov 03, 2008 ... Forthcoming changes in the US political landscape may have a significant impact upon patent law. It seems likely that both candidates in the campaign will press for reform of US patent law. Both parties have expressed the view that patents in the US are granted too easily, and ...
IT Freelancers - A Status Change?
Nov 03, 2008 ... A recent ruling by the Inland Revenue may have significant implications for consultants working within the IT industry, and for those working with them. The ruling in question concerned a Mr Bessell. Mr Bessell carried out IT related work for the AA over a period of three years ...
Patent Licences - Ambiguities Become Clearer.
Nov 03, 2008 ... The High Court was recently required to examine issues of interpretation relating to a patent licence. The case in question concerned the development of a new catalyst for use with respect to diesel fuel engines. It was expected that this new catalyst would incorporate ...
New Legislation Seeks To Enhance IP Enforcement.
Nov 03, 2008 ... In late September 2008, the U.S. Senate and the U.S. House of Representatives passed legislation that seeks to enhance the resources and tools necessary to counter intellectual property (IP) infringement and counterfeiting. The bill, entitled Prioritizing Resources and Organization for ...
Delayed Patents May Obtain Additional Patent Term Under District Court Ruling In Wyeth.
Nov 03, 2008 ... On September 30, 2008, the U.S. District Court for the District of Columbia issued a decision that changes how the U.S. Patent and Trademark Office (PTO) calculates a patent term adjustment under 35 U.S.C. s. 154. Wyeth v. Dudas, No. 07-1492 (D.D.C. 2008). Under current law, s ....
SEC Amends Rules On Cross-Border Tender Offers, Exchange Offers, Business Combinations.(U.S. Securities and Exchange Commission)
Nov 03, 2008 ... The amended rules are designed to expand and enhance the utility of the cross-border exemptions for business combination transactions and rights offerings and to encourage offerors and issuers to permit U.S. security holders to participate in these transactions on the same terms as other ...
Focus On The Financial Services Industry: What Banks And Other Financial Services Companies Need To Understand About U.S. Export Controls And Economic Sanctions.(United States. Department of the Treasury. Office of Foreign Assets Control)
Nov 03, 2008 ... It goes without saying that the United States Government imposes numerous controls on the export of products and technologies. The classic "export control" prohibits the transfer of military items to countries and individuals with which the United States is not friendly. ...
Cayman Hedge Funds Reach New Milestone.
Nov 03, 2008 ... Paul Scrivener and Laura Hatfield of Solomon Harris provide an update on Cayman's hedge fund industry For quite some time now the Cayman Islands has been the global market leader for hedge funds, entirely dwarfing other offshore centres such as Bermuda, the British Virgin ...
California Court Further Clarifies Meal And Rest Period Obligations For Employers.(Brinker Restaurant Corporation)(California. Court of Appeal)(Case overview)
Nov 03, 2008 ... On the heels of the California Supreme Court's grant of review of Brinker Rest. Corp. v. Superior Court, the Second Appellate District of the California Court of Appeal has published a new opinion addressing many of the same meal and rest period issues that were considered in Brinker. ...
U.S. Treasury Department's Capital Purchase Program: Should You Go To The Dance?
Nov 03, 2008 ... On Oct. 14, 2008 the Secretary of the Treasury announced a voluntary program within the Troubled Asset Relief Program ("TARP"), for a direct injection of capital from the U.S. Treasury Department ("Treasury") in the form of cumulative senior perpetual preferred stock into eligible banks, ...
U.S. Wireless Carrier Issues.
Nov 03, 2008 ... As a result of rapid market, technology and policy developments in the area of mobile communications services, wireless carriers in the United States are facing numerous regulatory and legal questions affecting their operations and the services they provide. One of the leading issues now ...
SEC Extends And Modifies Institutional Investor Short Sale Reporting, Adopts Naked Short Selling Rules.(United States. Securities and Exchange Commission)
Nov 03, 2008 ... The effect of these actions is to retain, with some changes, the emergency measures relating to short selling that the SEC adopted in a flurry of emergency orders in September 2008. The U.S. Securities and Exchange Commission (SEC) has modified and extended until August 1, 2009, ...
Lab Tests Wins Back Lab Services Contract.(New Zealand Public Health and Disability Act)
Nov 03, 2008 ... The recent decision of the Court of Appeal has quashed the decision of the High Court which invalidated not only the decision of the Auckland Regional District Health Boards (ARDHBs) to award the contract to provide primary referred pathology services to Lab Tests but also the contract ...
Securities Cross-Trading - ERISA Final Rule.(Employee Retirement Income Security Act of 1974)
Nov 03, 2008 ... The Pension Plan Protection Act of 2006 added to ERISA a new section 408(b)(19), which provides an exemption for the "cross-trading" of securities between accounts managed by the same investment manager, subject to certain conditions. In addition, Congress provided that the U.S. Department ...
Funding Boost For Waste Recycling Sector.(Waste and Resources Action Programme)
Nov 03, 2008 ... Waste & Resources Action Programme (WRAP) has launched two new funding programmes to reduce waste and promote recycling. The Environmental Transformation Fund (ETF) Anaerobic Digestion (AD) Demonstration Programme is a [pounds]10 million scheme aimed at encouraging the ...
Damages In Private Cartel Actions: The Position In England.
Nov 03, 2008 ... Competition authorities in Europe have sought to encourage private law actions against cartelist as part of effective antitrust law enforcement. In its White Paper of April this year, the Commission stated that: to date in practice victims of EC antitrust infringements only ...
The FDIC Temporary Liquidity Guarantee Program: Opportunities To Enhance Liquidity And Funding.(United States. Federal Deposit Insurance Corp.)(United States. Secretary of the Treasury)
Nov 03, 2008 ... The FDIC and the Secretary of the Treasury, after consultation with the President, have determined that systemic risk exists in the financial system, and on October 14, the FDIC announced (the "Announcement") a "Temporary Liquidity Guarantee Program" (the "TLG"), and the Treasury announced ...
ASIC's Position On Short Selling.(Australian Securities and Investments Commission)
Nov 03, 2008 ... The continuing effects of the global financial crisis have resulted in what some have called unprecedented turmoil in financial markets. Some of the volatility in stock markets has been blamed on short selling. Short selling is an activity whereby an entity enters into an ...
International Tax Panel Update.
Nov 03, 2008 ... Originally Published September 2008 Federal Budget roundup The 2008-09 Federal Budget, the first under the new Labor government, introduced major revenue and expenditure measures that will have a significant impact on business. Taxation of Financial Arrangements ...
Plan To Restrict Access To Share Registers.(Parliamentary Joint Committee)
Nov 03, 2008 ... The Parliamentary Joint Committee on Corporations and Financial Services (the Committee) has recently recommended an amendment to the Corporations Act which if adopted will limit public access to the share register of Australian companies. In particular, the Committee has recommended that ...
The Power To Call On Bank Guarantees.(Clough Engineering Ltd.)(Oil and Natural Gas Corporation Ltd.)(Case overview)
Nov 03, 2008 ... Bank or performance guarantees are critical in the risk allocation between parties to construction contracts. The precise wording of the requirement for such a guarantee and form it should take are, however, often overlooked in negotiations. Given the number of guarantees typically ...
Nursing Facility Transparency And Congress.(Nursing Home Transparency and Improvement Act of 2008)
Nov 03, 2008 ... For years, the long-term care community has supported the development of a nursing facility oversight system that is more objective, provides incentives for improvement, and better measures quality outcomes and processes. Congress has introduced two such bills this year. ...
Informal Merger Approval Process: ACCC May Take A Tougher Line On Undertakings.(Australian Competition & Consumer Commission)
Nov 03, 2008 ... A recent statement by the Australian Competition & Consumer Commission (ACCC) chairman Graeme Samuel suggests that the ACCC may take a tougher stance on undertakings given during the informal merger approval process, or consider bringing to an end its practice of accepting such ...
Certain Shelf Registration Statements To Expire December 1, 2008.
Nov 03, 2008 ... Issuers who have shelf registration statements that were effective prior to December 1, 2005 should take action immediately, if they have not already done so, to determine whether these registration statements expire on December 1, 2008 and to file replacement registration statements ...
Takeovers: Implications Of MacarthurCook Limited.
Nov 03, 2008 ... The Takeovers Panel (Panel) has arguably extended its policy on frustrating action with its decision in the matter of MacarthurCook Limited [2008] ATP 20. In that matter, the Panel considered that aspects of a 'strategic alliance' (whereby MacarthurCook Limited (MacarthurCook) placed 3.45 ...
How Extravagant Are Your Liquidated Damages?(Case overview)
Nov 03, 2008 ... Liquidated damages are a powerful tool to both encourage contractual compliance and to provide financial protection to a party where the other party breaches the contract. In the recent case of GT Corporation Pty Ltd v Amare Safety Pty Ltd (No 2) [2008] VSC 223, one of the parties was able ...
Personal Liability For Misleading Or Deceptive Public Announcements.(Case overview)
Nov 03, 2008 ... The recent unanimous judgment of the Full Federal Court in Australian Securities and Investments Commission v Narain [2008] FCAFC 120: Highlights the importance of ensuring public statements are not misleading or deceptive. Provides guidance where company officers ...
The Price To Pay For Victorian Payment Claims.
Nov 03, 2008 ... In the recent decision of Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248, the Federal Court has held that a payment claim under the Building and Construction Industry Security of Payment Act 2002 (Vic) must clearly identify the construction work as the subject of the claim, and include ...
Ensuring Product Safety: Tricks And Traps In AS3806 Compliance.
Nov 03, 2008 ... Key Points Adopting a risk-based approach minimises non-compliance with product safety standards. AS3806 provides guidance for implementing the needed controls that maintain compliance. In our previous article, we discussed the reasons to implement a ...
The Battle Of Project Home Designs Continues.
Nov 03, 2008 ... The Federal Court recently dismissed a copyright infringement claim on the basis that it had not been established that direct or indirect copying of another's project home design had occurred. The case reveals the key to a successful defence to copyright infringement lay in providing ...
Doing The Deed A Deed, Standard Contract OR Agreement ?
Nov 03, 2008 ... Making the right decision on whether to use a deed, standard contract or an agreement can make a significant difference to the success of a transaction or project. In this article we look at the differences between all three, and conclude that there are particular benefits obtained by ...
Product Liability And Class Actions: The Litigation Leagues Table.
Nov 03, 2008 ... Key Points The number of product liability and class actions decisions in Australia is measured compared to some overseas jurisdictions Food and drink are the most likely to be the subject of litigation in Australia and building products are the most litigated product ...
Enforceability Of Dispute Resolution Clauses.(Dualcorp Pty Limited)(Remo Constructions Pty Limited)(Case overview)
Nov 03, 2008 ... In the recent case of Dualcorp Pty Limited v Remo Constructions Pty Limited [2008] NSWSC 749, the NSW Supreme Court confirmed that it will only enforce alternate dispute resolution clauses if it satisfied that the proposed process is complete and appropriate. Dualcorp Pty Ltd (Dualcorp) ...
Supreme Judicial Court Extends Anti-Discrimination Laws To Small Businesses.
Nov 03, 2008 ... Chapter 151B, the Massachusetts anti-discrimination statute, does not apply to small employers, meaning those with fewer than six employees. However, last Friday, the Massachusetts Supreme Judicial Court ("SJC") held that an employee may nonetheless sue a small employer for discrimination ...
WorkSafe Blitz On Manual Handling Hazards.(Occupational Health and Safety Regulations 2007)
Nov 03, 2008 ... WorkSafe have announced that from 1 November 2008 they will be conducting a state-wide inspection campaign targeting musculoskeletal disorder injuries, more commonly known as manual handling sprains and strains. WorkSafe's Executive Director, Mr John Merritt is quoted as ...
Second Circuit Issues Ruling On Foreign Issuer Securities Case.
Nov 03, 2008 ... On October 23, 2008, the Second Circuit Court of Appeals issued an important decision regarding the extraterritorial application of the U.S. securities laws that will have broad implications for non-U.S. public companies. Morrison v. National Australia Bank, Ltd., No. 07-0583-cv (2d Cir ....
ICANN Releases Draft Applicant Guidebook for New Generic Top-Level Domains.(Internet Corporation for Assigned Names and Numbers)
Nov 03, 2008 ... The Internet Corporation for Assigned Names and Numbers ("ICANN"), the organization that is responsible for the allocation of Internet domain names and IP addresses, released draft policy documents regarding a new program that will permit organizations to create and operate generic ...
Collection Of Employees' Past Medical Records Is Legal.
Nov 03, 2008 ... In late 2005, the largest airline company in Hong Kong, Cathay Pacific Airways Limited ("CX"), implemented a programme requiring its cabin crew members who took long or frequent sick leave to disclose their medical records in the past 12 months. Failure to consent to the disclosure may be ...
Development charge credit claims.
Nov 03, 2008 ... Introduction In P. Barnett Construction v. Burlington (City), (2008), 44 M.P.L.R. (4th) 122, the Ontario Superior Court of Justice dismissed an application by a landowner seeking an exemption from development charges ("DCs") by virtue of subdivision (lot levy) agreements that ...
A primer on the law of open and closed meetings.
Nov 03, 2008 ... Introduction Any person doing business with municipalities has the right to expect open and transparent decision making on the part of municipal councils, their committees and local boards. This article provides an overview of the history of open meetings in Ontario, the current ...
California Publishes Climate Change Proposed Scoping Plan.
Nov 03, 2008 ... California, the U.S.'s most populous state and one of the world's ten largest economies, has historically exerted significant influence on the design of standards in the U.S. and beyond. The world's fifteenth largest greenhouse gas ("GHG") emitter, it is responsible for two percent of ...
Western Climate Initiative finalizes Cap-And-Trade program recommendations.
Nov 04, 2008 ... Article written by Barbara Hendrickson with assistance from Marty Venalainen, Student-at-Law. The Western Climate Initiative (the "WCI") released the Draft Design of the Regional Cap-and-Trade Program (the "Draft Design") in July 2008 and, in August, we published a bulletin ...
In re Bilski: The Federal Circuit Defines New Rules For Patenting Business Methods.
Nov 04, 2008 ... Introduction Yesterday, the Federal Circuit issued its long-awaited decision on the patent-eligibility of business methods under Section 101 of the Patent Act. In In re Bilski, No. 2007-1130, slip op. (Fed. Cir. Oct. 30, 2008), the en banc court held that any process, including ...
The New Company Names Tribunal.
Nov 04, 2008 ... The snappily titled Company Names Adjudicator Rules 2008 established a new tribunal. It will deal with all complaints about company name registrations but especially those irritatingly opportunistic ones designed purely to cash in on the frustrations of legitimate name owners. Smartlaw ...
Private Trust Companies And Restricted Trust Licence Companies.
Nov 04, 2008 ... INTRODUCTION The Cayman Islands Monetary Authority ("CIMA") is responsible for processing private trust company registrations and granting restricted trusts licences and the procedure and criteria for the application process are set out in some detail on CIMA's website. ...
DHS To Publish Final Supplemental No-Match Rule.
Nov 04, 2008 ... The Department of Homeland Security (DHS) has released an advance copy of the Final Supplemental No-Match rule. It is not surprising that the substance of the rule, and the safe harbor procedure set forth therein, have not changed substantively from the August 2007 No-Match Safe Harbor ...
Segregated Portfolio Companies.(amendments of Segregated Portfolio Companies provisions in Part XIV of the Companies Law)
Nov 04, 2008 ... INTRODUCTION A significant amendment was made to the Companies Law (the "Law") which extended the scope of the Segregated Portfolio Companies provisions in Part XIV of the Law. The Law as amended permits any exempted company to apply to the Registrar of Companies to ...
Mutual Funds Local Audit Sign-Off.
Nov 04, 2008 ... Introduction Since 1 July 2002, the Cayman Islands' Monetary Authority ("CIMA") has required local audit sign-off on all mutual funds and mutual fund administrators regulated by CIMA. Summary Of Policy Private equity funds This policy does not apply to closed ended ...
Important Changes This Weekend To Maternity And Adoptive Leave Rights.(Brief article)
Nov 04, 2008 ... The Issue Employees whose babies are due to be born on or after this Sunday, 5 October, will benefit from the changes to the Sex Discrimination Act 1975 which came into force in April this year. These changes also benefit those employees who are due to adopt on or after this ...
Professional Indemnity: Do You Tick All The Right Boxes?(Case overview)
Nov 04, 2008; ... Hoddinott & others v Persimmon Homes (Wessex) Limited [2007]: Beware of the Strict Application of CPR Part 11 - Don't Lose Your Right to Dispute the Court's Jurisdiction The recent case of Hoddinott is a warning for solicitor insureds that the rules on disputing the jurisdiction ...
Who Pays The Ferryman? Transparency, Conflicts Of Interest And Disclosure Of Commissions - Does Any One Care?(United Kingdom. Financial Services Authority)
Nov 04, 2008; ... You should! Because although the FSA initially rejected the implementation of a regime of mandatory commission disclosure, that is not the end of the matter and the FSA is seeking comments on its current proposals, which could impact on the way you do business. The deadline for comments to ...
Corporate Managers And Officers.
Nov 04, 2008; ... Now you see them – now you don't Company Law 101 – if you attended the class and were awake in it, would teach you that the classic concept of management of a company is that the directors of a company are responsible for its management. This concept is important in ...
U.S. Justice Department Closes Delta/Northwest Investigation Without Challenge.
Nov 04, 2008; ... Today the Department of Justice Antitrust Division announced that it is closing its investigation of the proposed merger of Delta Air Lines and Northwest Airlines. Among the several airlines whose possible mergers have been discussed in the last year, these two carriers had particularly ...
IRS Announces 2009 Cost-Of-Living Adjustments.
Nov 04, 2008; ... The Internal Revenue Service (IRS) has announced the cost-of-living adjustments applicable to dollar limitations for pension plans and other amounts for 2009. Many of the limits have changed. This special edition of Foley's Legal News Alert contains a table showing the 2009 and ...
'Abnormal' Rent Review: Double Trouble For Tenants In Turmoil?(stamp duty land tax )
Nov 04, 2008; ... Stamp duty land tax (SDLT) came into force on 1 December 2003. On or shortly after 1 December 2008, many leases working on a five-year cycle will have their first rent review. If the tenant suffers an 'abnormal' increase of rent on review, it may also be subject to additional SDLT ...
Health Care Providers May Be Subject To FTC Identity Theft "Red Flag" Program.
Nov 04, 2008; ... The Fair and Accurate Credit Transaction (FACT) Act amended the Fair Credit Reporting Act (FCRA) by adding new sections dealing with guidelines for identity theft. These so-called "Red Flag Rules" were jointly adopted by the Federal Trade Commission (FTC) and five other federal agencies ...
Plaintiffs' Counsel Won't Give Up on Credit Card Suits.(Song-Beverly Credit Card Act)
Nov 04, 2008; ... Originally published November 3, 2008 Keywords: Fair and Accurate Credit Transaction Act, FACTA, credit card suits, Song-Beverley Credit Card Act, personal identification, copycat lawsuits Despite many courts refusing to certify classes in litigation brought under ...
Supreme Court Docket Report - October Term, 2008.(Mercedel Miles v. Apex Marine Corp.)(Trainer Wortham & Co. v. Betz)
Nov 04, 2008; ... Originally published November 3, 2008 Keywords: Miles, Apex Marine, maritime law, wrongful death, Atlantic Sounding Co, Townsend, Albertson's, Inc., Kanter, Federal Food, Drug, and Cosmetic Act, Trainer Wortham & Co., Betz, securities fraud The Supreme Court granted ...
DIP Financing In A CCAA.(Companies Creditors' Arrangement Act)(debtor in possession)(In Stomp Pork Farm Ltd)(Case overview)
Nov 04, 2008; ... In Stomp Pork Farm Ltd., Re, ("Stomp Park Farm") the Saskatchewan Court of Appeal partially overturned orders granted from the Saskatchewan Court of Queen's Bench which approved debtor in possession financing ("DIP Financing"). In this case, the debtor owed its first lender ...
Ontario Superior Court Allows Late Claims To Stand In A CCAA.(Companies' Creditors Arrangement Act)(Case overview)
Nov 04, 2008; ... In Re Canadian Red Cross Society, the Ontario Superior Court relied heavily on the Alberta Court of Appeal decision in Re Blue Range Resources in addressing questions of jurisdiction relating to the late or irregular filing of claims in a CCAA proceeding. This case was part of a lengthy ...