Mondaq Business Briefing articles from April 2009

Mondaq Business Briefing archives from April 2009

DeVry Inc. v. Univ. Of Med. & Health Scis.-St. Kitts,2009 WL 260950 (N.D. Ill. Feb. 3, 2009).(University of Medicine and Health Sciences-St. Kitts )
April 1, 2009... ABSTRACT The Northern District of Illinois denied a defendant's motion to dismiss for failure to state a claim based on the affirmative defenses of statutory fair use (often called "classic fair use") and nominative fair use (referred to...

Gray v. Novell, Inc., 2009 WL 425958 (M.D. Fla. Feb. 20, 2009).(case between Wayne Gray and Novell, Inc., )
April 1, 2009... ABSTRACT In its ruling on summary judgment, the Central District of Florida dismissed plaintiff Wayne Gray's challenge to X/Open's ownership of the UNIX trademark. Gray's lawsuit alleged violations of the federal RICO statute, the Lanham...

The Draft Bill (Prepared By Department Of The German Ministry Of Justice) Of The "Act To Simplify And Modernize The Patent Law" Of May 30, 2008 Is On The Legislative Agenda.
April 1, 2009... The German Association Of Industrial Property And Copyright Law (GRUR) Has Taken Position In Its Opinion Of August 8, 2008, Published In GRUR 2008 p. 881/882. First published in BARDEHLE PAGENBERG IP Report 2008-V at www.bardehle.com ...

Overview Of Notifications And Approvals Required In Respect Of The Change Of Control Of Jersey Entities.(Brief article)
April 1, 2009... Briefing The current global market turmoil has resulted in the announcement of a number of mergers, acquisitions and nationalisations of financial institutions throughout the world. The purpose of this chart is to provide a high level...

Financial Stability Plan Update.
April 1, 2009... This article was originally published 11 February, 2009 On Tuesday, February 10, 2009, Secretary of the Treasury Timothy Geithner outlined the six-point Financial Stability Plan (FSP), pursuant to which the Department of the Treasury, in...

Capital Relief Opportunities In The Insurance Industry.
April 1, 2009... This article was originally published 23 February, 2009 Due to the unprecedented nature of the current financial crisis, certain sectors of the insurance industry have faced significant challenges concerning their surplus and risk-based...

The Federal Public-Private Investment Program: Opportunities And Risks For FDIC-Insured Institutions.(Federal Deposit Insurance Corporation)
April 1, 2009... On March 23, 2009, the Treasury Department, Federal Deposit Insurance Corporation, and the Federal Reserve announced the long-awaited details of the government's plan to remove troubled assets from depository institutions. Although - still -...

Policy Holders In Environmental Cleanup Actions Are Potentially Entitled To Multiple Policy Limits; Multiple Causes Of Loss Are Not A Basis To Deny Coverage.
April 1, 2009... A policyholder defending against a lawsuit for environmental cleanup costs often faces hurdles in obtaining insurance coverage for defense and indemnity of the lawsuit. Many newer policies, for example, contain the so-called "absolute"...

Aviation Sector Getting Ready For Take Off.
April 1, 2009... Emulating the success of its shipping register, which has grown into the eight largest world-wide and second largest in Europe, Malta is committed to establishing itself as a leading aircraft register. Plans were recently announced to...

Outsourcing And The Economic Crisis, Part III: Post-Merger Technology Integration.
April 1, 2009... In our previous updates, we discussed outsourcing as a tool for significantly reducing costs (" Outsourcing Services in the Face of an Economic Downturn") and possible strategies for restructuring existing outsourcing deals as we head into a...

Inequitable Conduct Pitfalls - Special Considerations For Reexaminations And Complex Family Prosecutions.(Aluminart Products Ltd.,)
April 1, 2009... Patent prosecutors, beware: The latest decision from the Federal Circuit on the materiality prong of inequitable conduct, Larson v. Aluminart,1 makes it clear that office actions from related, copending applications can be material to...

New Merger Notification Thresholds - Good News For Business.
April 1, 2009... Since the inception of the Competition Commission in 1999 firms which meet certain turnover or asset values have had to notify the competition authorities of their intention to merge or face possible penalties of up to 10 per cent of their...

Two New Types Of Entity Receive Special Tax Treatment.
April 1, 2009... Two recent amendments to the Income Tax Act reflect a policy of encouraging the development of small enterprises. The first of these is aimed at reducing the compliance burden of micro enterprises and the second encourages venture capital...

The Expansion Of The Civil False Claims Act Under S. 386.
April 1, 2009... Article by Richard O. Duvall , Allison V. Feierabend , Christopher A. Myers and John P. Rowley III Originally published March 16, 2009 Richard Duvall , Christopher Myers and John Rowley III, Northern Virginia office. Allison...

Nasdaq Extends Suspension Of Minimum Listing Requirements.
April 1, 2009... Given the continued market instability, NASDAQ has submitted to the U.S. Securities and Exchange Commission a proposal to extend through July 19, 2009, its prior suspension of its rules requiring that NASDAQ-listed companies maintain a minimum...

PRC Law On Encouraging The "Circular Economy".
April 1, 2009... The concept of a "circular economy" took shape in the 1960s in the United States, and the term "circular economy" appeared in China in the mid-1990s. Promoting the circular economy is intended to raise energy efficiency and improve the...

One Step Nearer a Unified European Patent Litigation System.
April 1, 2009... Originally published 30 March 2009 Keywords: patents, European Commission, Unified Patent Litigation System, Community patent, European Patent Litigation Agreement, EPLA, UPLS, The European Commission has recommended to the European...

United States Immigration Alert.
April 1, 2009... 1. Travellers From Visa Waiver Countries Must Obtain Pre-Approval From The Department Of Homeland Security Before Entry Travellers from visa waiver countries must first obtain pre-approval from the Department of Homeland Security by...

I've Shot The Sheriff. Who's Going To Shoot The Provider?
April 1, 2009... During the last months newspapers and on-line sources have been crowded with reports about legislators' plans to police the Internet for a number of different reasons and through various legal means. An intense debate has heated up at an...

Europe's Number One Domicile.
April 1, 2009... Originally published in Strategic Risk, Captive Management, A guide to European captive domiciles and company strategies, March 2009 Richard Le Tocq, Chairman of the Guernsey Insurance Companies Management Association (GICMA) and Managing...

Ontario Budget Contains Measures To Strengthen Pension System.
April 1, 2009... The Ontario government introduced several measures for pension reform in the budget released on March 26.1 Of importance, we note that the government reiterated2 its proposal to provide temporary solvency funding relief for all Ontario...

National Association Of Insurance Commissioners Mandates Climate Change-Related Disclosures.
April 1, 2009... Developments Of Note National Association Of Insurance Commissioners Mandates Climate Change-Related Disclosures Treasury Announces Extension Of Temporary Money Market Funds Guarantee Program Through September 18, 2009 FINRA...

Changing The Playing Field: A Look At The Major Provisions Of The Final 403(B) Regulations Impacting 403(B) Plans.
April 1, 2009... Charitable organizations, public schools and universities may sponsor retirement plans that are governed by Section 403(b) of the Internal Revenue Code ("Section 403(b)"). The rules under Section 403(b) are different than the rules governing...

Enforcement Of Jersey Security Agreements.
April 1, 2009... As the credit crunch continues to impact on the global economy and banking covenants come under greater pressure, lenders are increasingly examining the detail of their security packages in order to identify the various enforcement options open...

Insolvency Procedures In Respect Of Jersey Companies.
April 1, 2009... The credit crunch has put pressure on a wide range of structures and, as a result, lenders, borrowers and other counterparties are looking more closely at the impact of possible insolvency proceedings. As Jersey companies have often been used...

The Carbon Pollution Reduction Scheme.
April 1, 2009... On 15 December 2008, the Federal Government released its White Paper on the Carbon Pollution Reduction Scheme (CPRS). The CPRS is the Government's primary policy tool to reduce Australia's greenhouse gas emissions, with the emissions trading...

FSA Proposes Disclosure Regime For All UK Listed Stocks.
April 1, 2009... Following the extension of its short-selling disclosure rules for financial stocks last month, the FSA has published a new paper proposing that short positions in all listed UK stocks should be disclosed. The FSA says the case for increasing...

Your Decision Was Too Late, Or Have I Misconstrued?
April 1, 2009... In Waratah Coal Inc v Minister for the Environment Heritage and the Arts [2008] FCA 1870, the Federal Court rejected an application for review of the Federal Environment Minister's decision to refuse a proposal involving the construction of a...

Hedge Fund Bosses Come Under Fire In Treasury Select Committee.
April 1, 2009... As part of its ongoing inquiry into the banking crisis, last month the Treasury Select Committee invited some of the UK's top hedge fund managers to give evidence. Witnesses on the panel included Paul Marshall, chairman of Marshall Wallace;...

Letters Of Intent - Are You Acting At Your Own Risk?
April 1, 2009... The decision in Diamond Build Limited v Clapham Park Homes Limited [2008] EWHC 1439 (TCC) demonstrates the potential risk for a contractor who commences work under a letter of intent prior to finalising the building contract. It is common...

New Law Spurs Growth In Swiss Hedge Fund Sector.
April 1, 2009... Enacted two years ago to enhance the competitiveness of the Swiss funds industry, the Swiss Collective Investment Schemes Act (CISA) has been responsible for a large rise in the number of qualified investor funds, according to the Swiss Funds...

Duty To Give Reasons For Administrative Decisions.
April 1, 2009... The English Court of Appeal decision in R (on the application of Hasan) v Secretary of State for Trade and Industry [2008] EWCA Civ 1311 reiterated that public authorities in the United Kingdom are not yet bound by a general common law duty to...

Now Is The Time To Establish A Captive.
April 1, 2009... Originally published in Strategic Risk, Captive Management, A guide to European captive domiciles and company strategies, March 2009 Foreword by Peter Niven, Chief Executive of Guernsey Finance – the promotional agency for the...

Duty Of Care Owed By Ambulance Officers To Those Refusing Treatment.
April 1, 2009... The duty of care owed by ambulance officers to persons refusing medical treatment was recently examined by the New South Wales Court of Appeal in the case of Neal v Ambulance Service of New South Wales [2008] NSWCA 346. Background In the...

Claims Of Bullying And Harassment: The Defence To A Performance Review?
April 1, 2009... More frequently, employees who are the subject of formal or informal performance reviews claim that they are being bullied and harassed, as a way of either sabotaging the performance review or because they have genuine perceptions of unfairness...

Trips And Traps Of Voluntary Administration.
April 1, 2009... Key Points In the current economic climate businesses need to be adaptable to the increasing risk of their suppliers and distributors facing financial difficulty. The failure of a key supplier or distributor can have significant...

Jurisdictional Issues Associated With Water Resources Management Legislation.
April 1, 2009... Achieving sustainability in the use of water resources is a significant issue facing legislators. Federal and State Governments in Australia have enacted comprehensive water legislation in an endeavour to ensure that limited water resources are...

Vexatious Litigants - Look Out!
April 1, 2009... The Vexatious Proceedings Act 2008 (NSW) (Act), which commenced on 1 December 2008, expands the powers of certain courts in New South Wales to make orders restricting proceedings by vexatious litigants. The Act is based upon model legislation...

LMAA Introduces Intermediate Claims Procedure.(London Maritime Arbitrators Association )
April 1, 2009... The LMAA has introduced anupdated fast track procedure to deal with claims between USD 100,000 and USD 400,000. The LMAA introduced the new "Intermediate Claims Procedure" ("ICP") in 2009, following consultation with the Baltic Exchange. ...

Contracting Out Of The Contract: Can Equitable Remedies Edit Written Agreements?
April 1, 2009... The New South Wales Court of Appeal decision in Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 provides a detailed examination of the current law on the equitable remedies of rectification and estoppel by convention. Background...

Queensland Government Departments No Longer Immune From Workplace Safety Prosecutions.
April 1, 2009... From 1 January 2009, changes introduced by the Workplace Health and Safety and other Legislation Amendment Act 2008 (Qld) (Amendment Act) expressly permit the prosecution of government departments under the Workplace Health and Safety Act 1995...

The Proceeds Of Crime Act Shows Its Ambiguous Hand.
April 1, 2009... The Supreme Court decision in Commonwealth of Australia v Lee [2008] NSWSC 1014 concerned a stay application by Mr Lee (the Applicant) to prevent the Commonwealth from disposing of his wife's share of their jointly owned property under the...

Closing Protection Letters: Important Tools For Protecting Mortgage-Backed Assets.
April 1, 2009... Anyone who has bought real estate is likely familiar with title insurance policies, which at a minimum protect buyers and lenders from title defects that exist as of the date of settlement. When a seller fails to disclose a prior existing lien...

New York's First Department Rejects Insurer's Attempt To Disclaim Coverage On Grounds Not Specifically Identified In The Initial Disclaimer.
April 1, 2009... Policyholders recently achieved a major victory in Estee Lauder Inc. v. OneBeacon Ins. Group, LLC, No. 602379/05, 2009 WL 398879 (1st Dep't Feb. 19, 2009), which significantly raises the bar for what an insurer is required to do in order to...

Last-Minute Tax Tips To Consider In Recessionary Times.
April 1, 2009... Originally published in The Legal Intelligencer The troubled economy has prompted recent income tax law changes, creating unique tax savings opportunities for many individuals and businesses. Tried-and-true tax strategies also exist that...

Slumdogs & Copycats.
April 1, 2009... The Bollywood Kung Fu comedy, Chandni Chowk to China, is remarkable not just for its marriage of popular genres from the world's most populous countries. It is also one of the few Bollywood movies to be bankrolled by a major studio. The studio,...

Employment Alert: Court Of Appeals Ruling Potentially Streamlines Trade Secret Litigation.
April 1, 2009... Whether on the complaining or defending end of a trade secret complaint, employers can agree on one thing: trade secret litigation is expensive. Over the past several years, what was already a costly process had become even more burdensome, as...

Toxic Assets Alert: Treasury Department Releases Plan On Toxic Assets.
April 1, 2009... The United States Treasury Department (the "Treasury") has announced a series of initiatives as part of its Financial Stability Plan to stimulate the purchase of troubled assets comprised of real estate loans held directly on the books of FDIC...

Health Law Client Alert: OIG Narrows Scope Of Permissive Self-Disclosures And Imposes A Floor On Kickback Settlement Amounts.
April 1, 2009... In an Open Letter to Health Care Providers (the "Open Letter") issued on March 24, 2009, the Office of Inspector General (OIG) announced significant limits on the use of its Self-Disclosure Protocol (SDP). According to the Open Letter,...

Court Reviews Fair Basis.
April 1, 2009... The Federal Court of Australia, in Sunnyfield Association v Cronk [2009] FCA 33, recently provided further evidence that the fair basis requirement in Australia is being interpreted more liberally. Fair basis is analogous to the European...

ISPs To Provide Mandatory Internet Filtering.
April 1, 2009... On 31 December 2008, the Federal Government announced that it would be discontinuing the NetAlert internet filtering program established by the previous government. The government will now require Internet Service Providers (ISPs) to implement...

Criminalisation Of Cartels.
April 1, 2009... On 1 January 2010, criminal sanctions will be introduced for behaviour that leads to or facilitates the creation of a cartel, regardless of whether Czech or EU competition law applies. The provisions in the new Criminal Code will make it a...

Winding Up Guernsey Property Unit Trusts (GPUTS).
April 2, 2009... Although still a common vehicle for joint property-holding ventures, GPUTs reached a peak of popularity between 2003 and March 2006 because of their exclusion from the application of Stamp Duty Land Tax on UK property transfers. Many GPUTs,...

Gifts Not On The List - The Narnia Decision.
April 2, 2009... A World Intellectual Property Office (WIPO) panel ordered the transfer of the NARNIA.MOBI domain name to C.S. Lewis (PTE.) Ltd., the owner of the NARNIA trade-mark, after finding that the registrant did not have a legitimate interest in the...

Late Redelivery Clause An Unenforceable Penalty.
April 2, 2009... In Lansat Shipping Co v. Glencore Grain BV (25 March 2009) the Commercial Court held that a liquidated damages clause relating to late redelivery in a time charter was penal and unenforceable. The decision highlights a creativity on the part of...

Charter Terms Develop To Address Increased Piracy Risks.
April 2, 2009... The upsurge in piracy in the Gulf of Aden has continued since the beginning of this year, despite increased security measures. During March 2009, four vessels were reported captured by pirates, and several more vessels were attacked. Against...

Paradigms In Motion - Switzerland Leads Historic Revision Of Banking Secrecy.
April 2, 2009... In the most significant development in private banking since the Second World War, Europe's champions of banking secrecy have pledged to implement information exchange arrangements consistent with OECD standards. Switzerland, Austria,...

Key Tax Issues For Private Equity Investments In Distressed Debt: Buyer Beware.
April 2, 2009... Due to the current state of the credit and bond markets, many market participants are being presented with opportunities to acquire debt obligations from lenders at significant discounts to face amount. These opportunities are increasingly...

A Compilation Of Enforcement And Non-Enforcement Actions - March 2009.
April 2, 2009... Non-Enforcement IAA Wants SEC to Review Custody Rule On March 6, 2009, the Investment Adviser Association (IAA) sent a letter to U.S. Securities and Exchange Commission (SEC) Chair Mary Schapiro, asking the SEC to tighten the exemptions for...

Real Estate Finance In Russia.
April 2, 2009... Article by Yury Tuktarov, Alexander Nadrnitov and Dmitry Sobolev INTRODUCTION During the last decade, Russia has had great success at attracting investment into its domestic real estate market. It is estimated that in excess of us $11...

Delaware Supreme Court Reconfirms That Bad Faith Requires Intentional Dereliction.
April 2, 2009... Introduction On March 25, the Delaware Supreme Court eliminated directors' concerns created by a troublesome Court of Chancery opinion from last year. In Lyondell Chemical Company v. Ryan, the Delaware Supreme Court further clarified the...

Changes To Contaminated Land Law In NSW: How Does This Impact On You?
April 2, 2009... Key Point More people will be responsible for contamination, and failure to address it will attract more severe penalties. The New South Wales Government has tightened its regulation of contaminated land exposing landowners and...

New Charge Or Variation?
April 2, 2009... In Re Octaviar Ltd; Re Octaviar Administration Pty Ltd [2009] QSC 37, the Supreme Court of Queensland considered the question of what is meant by a "variation" of a charge for the purposes of section 268(2) of the Corporations Act. The...

Further Fair Work Bill Introduced.
April 2, 2009... The Federal Industrial Relations Minister, Julia Gillard, has introduced the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 ("Transition Bill"). The purpose of the Transition Bill is to provide a mechanism for the...

Reversing Course: President Obama Signs Four Executive Orders Affecting Federal Contractors.
April 2, 2009... Recently, President Obama signed four Executive Orders affecting Federal contractors, all of which overturn prior Executive Orders on the same topics signed by President Bush. The Orders are part of President Obama's Task Force on Middle Class...

Trader's Guide: How To Manage Risk And Reduce Exposure.
April 2, 2009... Since September 2008, and the collapse of Lehman Brothers, not a day seems to pass without news of the impact of the global financial crisis upon markets. In this article, Eurof Lloyd-Lewis looks at how international trade contracts may be...

Construction Of Insurance Warranties - A Search For Meaning Is Not Always Easy.
April 2, 2009... Marine insurance warranties are terms of an insurance contract by which the insured undertakes that some particular thing shall or shall not be done, or that some condition shall be fulfilled, or whereby the existence of a particular state of...

Social Service Claims After Pierce v Doncaster MBC, Court Of Appeal, December 2008.
April 2, 2009... Considerable publicity has been generated by this case, including a headline piece in The Times headed "300 victims of abuse to sue councils for neglect", after this allegedly landmark ruling "established for the first time that local...

Supreme Court Clarifies Departing Employees' Duties To Employers.
April 2, 2009... In the recent decision of the Supreme Court of Canada (SCC) in RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. (2008 SCC 54), the SCC confirmed that there is no general duty owed by departing employees to refrain from competing...

Update On The "Inevitable Disclosure" Doctrine In Canada.
April 2, 2009... The doctrine of "inevitable disclosure" is based on the proposition that an employee who performs the same or similar work for a direct competitor of a former employer, will inevitably use or disclose confidential information and trade secrets...

Bill 84 And Bill 95 Introduced To Amend Occupational Health And Safety Act.
April 2, 2009... Ontario has recently introduced two proposed amendments to the Occupational Health and Safety Act (the Act): Bill 84 and Bill 95. Bill 84: Workplace death, injury and illness registry Bill 84, the Occupational Health and Safety Amendment...

Dabur's Design Contest In Hair Oil Packaging.
April 2, 2009... Aggrieved by the dismissal of an application filed under Order 39 Rules 1 and 2 CPC, Dabur India Limited filed an appeal to the decision of the Ld. Single Judge of the Delhi High Court, in Dabur India Ltd. v. Amit Jain & Anr. {2009 (39) PTC 104...

France Develops 'Domestic' JI Projects.
April 2, 2009... Following the announcement by the French government late last year that they had approved their first domestic Joint Implementation (JI) project, this note has been prepared to act as a guide to JI projects, explain how the French domestic...

New Developments In The United States.
April 2, 2009... On March 31, 2009, U.S. House Representatives Henry A. Waxman (D-Calif.) and Edward J. Markey (D-Mass.) released their discussion draft, "American Clean Energy and Security Act of 2009" (ACES). This is a far-reaching bill containing a framework...

New I-9 Form Takes Effect On April 3, 2009.
April 2, 2009... Beginning on April 3, 2009, employers must use the new Form I-9 Employer Eligibility Verification when verifying and reverifying the employment eligibility of their workers. The current version of Form I-9 may be used through April 2, 2009, but...

Minimum Wage In Ontario Rises Again.
April 2, 2009... Copyright 2009, Blake, Cassels & Graydon LLP Originally published in Blakes Bulletin on Labour & Employment, March 2009 On March 31, 2009, the general minimum wage in Ontario becomes C$9.50 per hour. This is the sixth increase in the...

Shrinking Prospects For Private Trade Secret Actions Under The CFAA.
April 2, 2009... The Computer Fraud and Abuse Act (CFAA), 18 U.S.C. s. 1030, was enacted in 1984 as a criminal statute, but was subsequently amended in the 1990s to allow for private causes of action for damage to a "protected computer." As confidential...

Development Management Made Easy?
April 2, 2009... When passed, the Title Conditions (Scotland) Act 2003 contained a section headed "Development Management Scheme" which promised the ability to apply a pre-formulated scheme for managing commercial and residential developments. What was missing...

Intellectual Property Bulletin - Spring, 2009.
April 2, 2009... Contents 2009 Will Highlight the Mixed Heritage of Intellectual Property Drama Unfolds Over Jeans in Trade Secret Discovery Ruling State Court Decision Raises Issue of Whether California County Copyrights Are in Public Domain ...

(In)Game Advertising: The European Perspective On Related Legal Problems.
April 2, 2009... By Avv. Felix Hofer 1 1. When I came around 'game advertising' for the first time my attitude as a lawyer, not necessarily familiar with what I – snobbishly – considered as basically being "kid's or nerds' stuff", was obviously...

US-Canada Cross-Border M&A.
April 2, 2009... 1. OVERVIEW US is Canada's largest trading partner Canada is the second largest exporter to the US (after China) Canada's economy is highly interconnected with that of the US substantial drop in Canadian dollar creates new...

2009 Ontario Budget - Sales Tax Harmonization: A Reality.
April 2, 2009... Copyright 2009, Blake, Cassels & Graydon LLP Originally published in Blakes Bulletin on Tax, April 2009 As was widely expected ahead of time, the centrepiece of Ontario's 2009 budget, released March 26, 2009, is a proposed...

Solvency II Brings New Pressures.
April 2, 2009... Originally published in Strategic Risk, Captive Management, A guide to European captive domiciles and company strategies, March 2009 Updating solvency frameworks has become essential for captive domiciles in the light of Solvency II....

Fair Work Bill - Senate Amendments And Transitional Legislation In Federal Parliament.
April 2, 2009... Article by Stuart Kollmorgen, David Cross, Richard Naughton, Jenny Thrum and Andre Didenkowski After scheduling a rare Friday sitting of Parliament on 20 March 2009, the Federal Parliament has now passed the Fair Work Bill. After a...