Mondaq Business Briefing articles from August 2008

Mondaq Business Briefing archives from August 2008

London Calling - International Commercial Arbitration.
August 1, 2008... The judgment by the Court of Appeal in Fiona Trust and Holding Corporation v Yuri Privalov (2007) is being hailed as a decision that will help maintain London's reputation as one of the leading centres for international commercial...

Sixth Circuit Addresses 'Temporal Proximity' Standard.
August 1, 2008... Timing is everything ― especially when it comes to retaliatory discharge claims. The Sixth U.S. Circuit Court of Appeals (which covers Tennessee) recently addressed the issue of timing when it comes to an adverse employment action in...

Sixth Circuit Extends Title VII Coverage To Friends And Relatives.
August 1, 2008... Recently, Tennessee's federal appellate court, the Sixth U.S. Circuit Court of Appeals, relied on the Equal Employment Opportunity Commission's (EEOC) Compliance Manual to support its extension of the antiretaliation provision in Title VII...

Employer's Manipulation Of Hiring Process Proves Discriminatory Intent.
August 1, 2008... Establishing and maintaining objectivity in the hiring process is often key to defending claims of unlawful discrimination. Earlier this year, the U.S. Court of Appeals for the Sixth Circuit (which covers Tennessee) demonstrated what can...

Unusual Or Onerous Terms.
August 1, 2008... Do your consumer products standard terms have anything unusual or onerous in them? If so, caselaw states that these must be brought to the other party's attention. Otherwise, they will be struck down. A recent construction case serves as a...

Proposed Changes To Tax On Electricity Supply.
August 1, 2008... New legislation on the taxation of electricity and energy products is expected to come into force on 1 January 2009. The legislation will bring Polish law into line with the EU Energy Directive and will replace the Excise Act of 23...

Public Liability Insurance - Coverage For Contractual Liabilities.
August 1, 2008... The Court of Appeal has affirmed the controversial decision of the High Court in Tesco Stores Ltd v Constable and Others, which took a narrow view of a contractual liability extension, effectively restricting cover to liabilities in tort. ...

The Pitfalls Of Group Litigation Orders.
August 1, 2008... A group litigation order (GLO) can be made where there are a number of claims giving rise to common issues of law or fact. By this method, one claim proceeds as a test and the rest are stayed until the conclusion of the test claim. The...

Draft Tender Regulations For Offshore Electricity Transmission Published.
August 1, 2008... On 25 July Ofgem published draft tender regulations as part of its ongoing consultation process for the development of the new regulatory regime for offshore electricity transmission. This will be of interest to parties wishing to...

IP Snapshot July 2008.(intellectual property)
August 1, 2008... Bringing you monthly news of key developments in intellectual property law. TRADE MARKS M'hlens GmbH & Co. KG v OHIM (CFI) The CFI upheld the Board of Appeal's opposition to the mark MINERAL SPA on the basis of the earlier...

New Law Liberalizes REIT Provisions.
August 1, 2008... Prohibited Transactions Tax Safe Harbor Holding Period Reduced to Two Years Yesterday President Bush signed into law the Housing and Economic Recovery Act of 2008 (the "Act"). The Act makes several beneficial changes to the REIT rules,...

Island Aids India's Biggest Developer In Latest Expansion.
August 1, 2008... Isle of Man based Hirco Plc, the investment vehicle for Hiranandani, is a fine example of an Indian family firm with a long and distinguished history that has flourished in the face of global competition in the international marketplace. ...

"ERIKA" Judgment - Environmental & Reputational Risk.(Brief article)
August 1, 2008... On 16 January 2008 the Criminal Court of Paris handed down its judgment in relation to the sinking of the tanker "ERIKA" in 1999. In addition to the vessel's Owners and Managers, Classification Society Rina and Total SA were found guilty...

Defining Delivery Periods.
August 1, 2008... The High Court's decision in Cereal Investment Co (CIC) SA v. ED&F Man Sugar Ltd [2007] EWCA Comm. 2843 concerns how parties define delivery periods in international sale contracts. The case concerned a sale of sugar by ED&F Man to CIC...

Employee Political Activity At Work: When Can The Employer Discipline For It?
August 1, 2008... With a presidential election only months away and controversy continuing over immigration reform, political activity among workers at many businesses is on the rise. Many employers, including non-union businesses, may find themselves...

Reexamination Filings Continue Their Upward Trend.
August 1, 2008... In the September 2007 issue of this newsletter, we reported on the latest reexamination statistics available at that time. In this issue, we provide an update on those figures based upon the USPTO's recent release of statistics for the first...

The Pitfalls Of Group Litigation Orders.
August 1, 2008... A group litigation order (GLO) can be made where there are a number of claims giving rise to common issues of law or fact. By this method, one claim proceeds as a test and the rest are stayed until the conclusion of the test claim. The...

Contracting Under Indian Or English Law: Part 3 - Special Issues For Technology Contracts.
August 1, 2008... Introduction This article is the third in a series of three articles looking at some of the key differences between contracts made under Indian law and those made under English law. The articles assume that the reader is familiar with...

Privacy Commissioner May Not Review Privileged Documents, Says Supreme Court Of Canada.
August 3, 2008... The Supreme Court of Canada has rejected the Canadian Privacy Commissioner's attempt to expand her mandate to include testing solicitor-client privilege claims. In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, released...

Federal Credit For Early Action Program: First Deadline Imminent.
August 3, 2008... Environment Canada has launched Phase I of its Credit for Early Action Program, a part of its proposed intensity-based cap-and-trade regime for large industrial emitters.1 The program is designed to offer a one-time allocation of credits to...

The Pit, The Pendulum, And The Legal Profession: Where Do We Stand After Five Years Of Sarbanes-Oxley.
August 3, 2008... Reproduced with permission from Securities Regulation & Law Report, Vol 40, No. 7 (Feb. 18, 2008), p. 247. Copyright 2008 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com. If you would like a copy of the article in...

Difference Of Opinion.
August 3, 2008... The Message: The amount of compensation awarded by a court may be far less than a claimant expected. The Case: The High Court has determined the level of damages payable to a party for wrongly being excluded from a development project...

SEC Staff Issues "Compliancealert" Letter, Alerting Compliance Officers To Deficiencies And Best Practices.
August 3, 2008... The staff of the U.S. Securities and Exchange Commission (SEC) Office of Compliance Inspections and Examinations (OCIE) has issued a new ComplianceAlert letter, describing issues and practices that the staff has encountered in examinations...

Quebec Implements Legislative Framework For Regulation Of Derivatives.
August 3, 2008... Bill 77, the Derivatives Act, received royal assent on June 20, 2008 and will come into force on dates to be set by the Government. The Bill, which was introduced on April 9, 2008 by the Quebec Minister of Finance, Monique Jerome-Forget,...

Taking Forward The Gowers Review: Proposed Copyright Exceptions.
August 4, 2008... In a previous bulletin we reported on the publication of the Gowers Review, the biggest Government-sponsored review of UK intellectual property for years. Now the UK IP Office has published a consultation on how the Review's recommendations...

Use Of A Trade Mark 'Embedded' In Computer System Is Not An Infringement.
August 4, 2008... In RxWorks Limited v Dr Paul Hunter, the High Court has considered the four-part test for trade mark infringement laid down last year by the European Court of Justice in Celine S[euro]rl v Celine SA, on which we reported in our previous...

Holding The Freeze - A Case Study.
August 4, 2008... Introduction Once a serious economic criminal learns that most of his concealed wealth has been frozen in multiple jurisdictions; that raids to search for and seize his confidential accounting, company and trust records have taken place...

A Ray Of Hope: California Court Of Appeal Decides Compliance With Meal Period Obligations Requires An Opportunity, Not A Guarantee.
August 4, 2008... The eagerly-awaited Brinker Restaurant Corporation v. Superior Court, No. D049331 (July 22, 2008) decision on California meal and rest periods is out and the news is encouraging for employers. The court held: Employers only have to...

Tuberculosis In The Workplace.
August 4, 2008... Employee enters your office, shakes your hand, coughs, and then sits in your chair to tell you that he needs time off because the doctor has informed him that he has "active tuberculosis" and will need some time away from work while...

Walkers SPV Limited.
August 4, 2008... From offices in the Cayman Islands, the British Virgin Islands, Dubai, Hong Kong, Jersey and London, Walkers Global Holdings Ltd, as part of the Walkers Group, provides management services to the leading FORTUNE 100 and FTSE 100 global...

New Rhode Island Law Grants Military Family Members Unpaid Leave.
August 4, 2008... On June 23, 2008, Governor Donald Carcieri signed into law the Family Military Leave Act (the "Act"), Rhode Island General Laws sections 30-33-1 to 30-33-6. The Act, effective when signed, offers a new right to unpaid leave for the family...

Reckeweg' Claim Relayed "Baseless".
August 4, 2008... Issues of passing off and copyright violation shadow the Indian litigation scenario today more than ever before. As corporations and companies increasingly value their intellectual property, the spite amongst rivals seems to be on the rise....

Compensation Disclosures: Notes On The 2008 Proxy Season.
August 4, 2008... By now, most publicly traded companies have completed their 2008 stockholder meetings. This was the second year of working with the SEC's new compensation disclosure rules, including the new section of the proxy on Compensation Discussion &...

Arbitration And Litigation: When Is It OK To Double Dip?
August 4, 2008... In a memorable Seinfeld episode, George Costanza learned just how strongly some people oppose the practice of "double dipping" (i.e., dabbing a chip in a bowl of dip, taking a bite, and then dipping the chip again). The Sixth U.S. Circuit...

Knocking Infringement Out Of Joint: Infringement Liability In The Wake Of BMC Resources, Inc. V. Paymentech, L.P. And Cross Medical Products, Inc. V. Medtronic Sofamor Danek, Inc.(Case overview)
August 4, 2008... The Patent Act was not explicitly designed to address infringement claims that are based on the actions of multiple actors. For example, if a patent claims a method of performing steps A, B, and C, and each of these steps is performed by a...

eBay Scorecard.(Brief article)
August 4, 2008... We began tracking application of the eBay decision in the Spring 2007 inaugural edition of our Intellectual Property Quarterly Newsletter, and this fifth installment of the "eBay Scorecard" is current through March 31, 2008. In this...

Housing Assistance Tax Act Of 2008 Signed Into Law.
August 4, 2008... On Wednesday, July 30, 2008, President Bush signed into law the Housing and Economic Recovery Act of 2008, which includes the Housing Assistance Tax Act of 2008 (the Act). The Act contains a number of new tax provisions designed to assist...

Community Right To Buy Legislation In Scotland: Selling To An Unwanted Purchaser.
August 4, 2008... Legislation intended to protect and advance the cause of crofters and small rural communities may have serious implications for commercial developers and other parties involved in real estate in Scotland. Legislation exists to provide...

New California Law Expands Winery Privileges.
August 4, 2008... Governor Schwarzenegger signed into law new provisions that allow wineries to sell wine by the glass and allow customers to buy and consume wine by the bottle at wineries. There are some twists to the new rules. The loosened rules apply only...

California Court Of Appeals Rejects Employer Strict Liability For Missed Meal Breaks.(Case overview)
August 4, 2008... Article by Diego F. Acevedo, Doug Dexter, Ann-Catherine Padian, Holly L. Sutton A California Court of Appeals has rejected the Division of Labor Standards Enforcement's ("DLSE's") long-held policy holding employers liable for missed...

Draft Construction Contracts Bill Published.
August 4, 2008... It was announced earlier this year that Parliament is finally to push through amendments to the Construction Act - officially known as the Housing Grant Construction and Regeneration Act 1996 - during the next Parliamentary Session....

Understanding The Issue Of Control In Grape Contracts.
August 4, 2008... Designing agreements that protect the rights of growers and buyers Grape contracts used to be made on a handshake and the reputation of the parties involved. If reduced to writing, they were often limited to one-page letters setting...

Congress Enacts New Laws Affecting REITs.(Real estate investment trusts)
August 4, 2008... On July 30, 2008, President Bush signed into law H.R. 3221, the American Housing Rescue and Foreclosure Prevention Act of 2008 (the "Act"), significantly revamping certain rules related to real estate investment trusts ("REITs"). A REIT is...

Corporate And Financial Weekly Digest - August 1, 2008.
August 4, 2008... SEC/CORPORATE Robert L. Kohl, Mark A. Conley & Jarrod N. Weber SEC Provides Guidance on the Use of Company Websites On July 30, the Securities and Exchange Commission voted unanimously to provide new guidance to public companies...

'COFFEE TIME' Ordered To Be Removed From The TM Register.
August 4, 2008... Maintaining the "purity" of the trademark register is one of the primary concerns of trademark practice in India. To enable this, the law provides for a procedure to apply for a rectification to be made in the Register. Provided under...

World Bank Report Supports Increased Finance For Environmentally Responsible Projects.
August 4, 2008... The World Bank's Independent Evaluation Group released a report on 19 July 2008 entitled "Environmental Sustainability - An Evaluation of the World Bank Group Support" This report reviewed investments in approximately 7,000 projects...

Department Of Labor Clarifies Annual Reporting Obligations Of ERISA Investors In Private Investment Funds.
August 4, 2008... Introduction On July 14, 2008, the US Department of Labor (the DOL) published a series of frequently asked questions (the FAQs) that favorably limit the scope of the DOL's November 2007 final regulation regarding the annual reporting...

Congress Overrides President To Adopt Major End Stage Renal Disease Payment Reform.
August 4, 2008... On July 15, 2008, Congress overwhelmingly overrode President Bush's veto of the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA, H.R. 6331). The legislation thwarts a 10.6 percent decrease in payments to physicians that...

Russian Capital Markets Introduce A New Financial Instrument.
August 4, 2008... In 2007, the Russian security market brought in a new financial instrument, Russian Depositary Receipts (RDRs), intended to attract investment. The idea of RDRs was announced in 1998, when the Federal Commission on Securities Market...

D.C. Circuit Reverses Denial Of Preliminary Injunction In FTC Action Against Whole Foods Acquisition Of Wild Oats.
August 4, 2008... On July 29, 2008, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit reversed, in a 2-1 decision, the district court's August 2007 decision denying the Federal Trade Commission's ("FTC")...

SEC Issues Emergency Order On Short-Selling.(Securities and Exchange Commission )
August 4, 2008... On July 15, 2008, the Securities and Exchange Commission (the "SEC") issued an emergency order restricting the use of "naked" short sales in the securities of nineteen major financial institutions. The SEC's order came in the wake of...

Structure And Responsibilities Of Agencies Under China Anti-Monopoly Law Enforcement Agencies Clarified.
August 4, 2008... As the countdown to the August 1, 2008, effective date of the new China Anti-Monopoly Law ("AML") nears its final stages, the structure and allocation of enforcement responsibilities under the AML is becoming slightly more clear. ...

California Appellate Court Holds That Meal Periods Must Be Made Available To Employees; California Labor Commissioner Follows Suit.(Case overview)
August 4, 2008... On July 22, 2008, the California Court of Appeal in San Diego issued a decision in favor of employers on a broad range of issues concerning the employer's obligation to "provide" meal and rest periods to its nonexempt employees, and what...

SEC Issues Order Affecting Short Sales In Financial.
August 4, 2008... The order, effective July 21, 2008, imposes strict prohibitions on effecting short sales in the shares of specified financial institutions if the short seller has not first borrowed or arranged to borrow the securities being sold short. ...

Breach Of Confidence And Infringement Of Database Rights.
August 4, 2008... Recent court decisions have cast further light on the extent to which employers can use claims of database right infringement and breach of confidence to restrain employees from making unauthorised use of their business information. ...

Pharmacapsules @ Gowlings - 1 August, 2008.
August 4, 2008... Edited by: Jennifer Wilkie and Chantal Saunders Ontario Government to Introduce Tendering for Public Drug Programs Strategic Risk Management for Biotechnology Companies Proposed Allergen Labelling Requirements PMPRB Issues...

California Court Clarifies Meal And Rest Period Obligations For Employers And Finds Claims Not Suitable For Class Action.
August 4, 2008... The California Court of Appeal has issued an important new decision that significantly impacts employee meal period and rest break requirements under state law. Brinker Rest. Corp. v. Superior Ct., 2008 WL 2806613 (July 22, 2008). The...

New Consumer Protection From Unfair Trading.
August 5, 2008... May 2008 saw the implementation in the UK of the Unfair Commercial Practices Directive (the Directive) by the introduction of the Consumer Protection from Unfair Trading Regulations 2007 (the Regulations), which will result in changes to...

Data Security Breaches: Legal Implications.(Brief article)
August 5, 2008... As has been widely reported, HM Revenue & Customs (HMRC) admitted having lost two CDs containing the personal and banking data of all child benefit claimants. This affected about 25 million people, putting them at risk of identify theft and...

"Societa Esplosivi v Ordnance Technologies Et Al": Design Right 'Bombshell'.
August 5, 2008... A recent fight between two munitions manufacturers raised the issue of whether the shape of a warhead was protected as a design. Unregistered UK design right exists in the design of any aspect of the shape or configuration (internal or...

EU's Highest Court Rules Speech Constitutes Employment Discrimination.(european Union)
August 5, 2008... In a ruling issued on July 10, 2008, the Court of Justice of the European Communities, the court charged with ensuring uniform application of EU legislation among member states, ruled that an employer's statements regarding recruitment of...

Annuity Sales Supervision Advisory Committee Reviews Proposed Regulations.
August 5, 2008... On July 21, 2008, the Annuity Sales Supervision Advisory Committee (Committee) reviewed a draft of proposed regulations that would provide further supervision regarding the sale of annuities to Wisconsin residents. Once finalized, the...

Storm Water Permit Moratorium In Los Angeles Region.
August 5, 2008... On July 2, 2008, the Superior Court of California, County of Orange (Court) issued a ruling in the matter of Cities of Arcadia, et al. v. State Water Resources Control Board, et al., (NO. 06CCO2974). The case addressed the impact of a...

Legislation Invalidating Arbitration Clauses In Franchise, Employment, Auto Purchase And Lease, And Consumer Agreements Makes Headway In U.S. House Of Representatives.
August 5, 2008... One year and three days after its introduction, the so-called "Arbitration Fairness Act of 2007" has advanced in the U.S. House of Representatives. This legislation would, as reported in a prior Legal News Alert: Distribution & Franchise...

Why The FSA May Be Interested In Your Bonus Scheme.(United Kingdom. Financial Services Authority)
August 5, 2008... By Alex Booth and Kate Payne First published: Insurance Day [25th July 2008] In recent speeches, both Callum McCarthy, outgoing Chairman of the FSA, and Hector Sants, its Chief Executive, have called upon the financial sector to...

Fraud Trials: Plea Negotiation- Plea Bargaining.
August 5, 2008... Reproduced with kind permission of The Barrister ,Trinity Term Issue Article by Monty Raphael, joint head of Fraud and Regulatory Department Any reform, particularly one as drastic as introducing negotiated justice must, I believe,...

Share Buybacks - Are They For Me?
August 5, 2008... Share buybacks, whereby a company buys its own shares and cancels them, can be useful for both the company and for shareholders, but there is no room for error and it is important to get it right first time, as Muckle LLP corporate partner...

Transmission Easements Introduced For Utility Services.
August 5, 2008... On 3 August 2008, it became possible for utility businesses to impose transmission easements on properties to facilitate the supply and/or removal of liquid, steam, gas or electric energy. Transmission easements were introduced by...

Objectivity prevails in PI Insurance - the High Court knows what is 'known'.(professional indemnity insurance )
August 5, 2008... In an eagerly anticipated decision1, the High Court of Australia yesterday reversed a string of decisions to hold that an objective test is applicable when considering the operation of "known circumstance" exclusions. While this result...

Massachusetts Enacts Green Communities Act.
August 5, 2008... Far-reaching Massachusetts "green" legislation is signed into law. On July 2, 2008, Massachusetts Governor Deval Patrick signed into law the Green Communities Act (the Act). The Act is a comprehensive bill that encourages energy reform...

IRS Issues Miscellaneous Guidance On Health Savings Accounts.(Internal Revenue Service)
August 5, 2008... Recent IRS Notice provides answers to a variety of technical HSA issues. In 2003, the Medicare Prescription Drug, Improvement, and Modernization Act added Section 223 to the Internal Revenue Code (Code), permitting eligible individuals...

OFT Targets Irresponsible Lending.(Office of Fair Trading )
August 5, 2008... The Consumer Credit Act 2006 explicitly includes 'irresponsible lending' as an unfair practice relevant to the OFT when considering a licensee's fitness to hold a consumer credit licence. The OFT has now taken the initial step towards...

The Exclusion For Known Circumstances - What Is "Known".
August 5, 2008... CGU Insurance Limited v. Porthouse [2008] HCA 30 (30 July 2008) This latest High Court authority provides protection for insurers from the subjective opinions of their insureds. Facts Counsel was sued. He was negligent in a failure to...

Congress Approves Medicare, Medicaid Changes.
August 5, 2008... In what is becoming an annual ritual, Congress on July 15, 2008, approved legislation (H.R.6331) that reverses a 10.6 percent reduction in Medicare payments to physicians. This year.s process, however, was more exciting and unpredictable...

Statutory Demands In Uncertain Times - A Timely Reminder.
August 5, 2008... Creditors are increasingly issuing statutory demands against a debtor company as a means of obtaining payment of outstanding debts of more than $2,000. A statutory demand is an effective tool in the armoury of a creditor seeking payment...

Corporate Manslaughter - What Does It All Mean?
August 5, 2008... After more than ten years of debate and much speculation about its content, the Corporate Manslaughter and Corporate Homicide Act 2007 ("the Act") has finally made its way to the statute book. The Act extends to all corporate entities and...

Local Government - Property.
August 5, 2008... The Retail Leases Act 2003 and Council owned premises (August 2008) The Determination The Minister for Small Business has made a determination published in the Victoria Government Gazette No. S 209 on 24 July 2008 (the...

Limits On The Ability To Grant Ancillary Relief.(Banco Nacional de Comercio Exterior S.N.C. v. Empresa de Telecomunicaciones de Cuba S.A.)
August 5, 2008... Banco Nacional de Comercio Exterior SNC v Empresa de Telecommunicationes de Cuba SA (English Court of Appeal, July 2007) provides an important illustration of the limits on the ability of the English court to grant freezing orders in aid of...

Assistance To Foreign Insolvency Office Holders - Freezing Orders And The Need For Substantive Proceedings.
August 5, 2008... In Fourie v Le Roux and others (January 2007), the House of Lords considered the question of whether it was proper for the Court to make an asset freezing order at a time when the claimant had not decided what proceedings he was going to...

Can A Litigant Be Restrained From Bringing Proceedings In Another EU State If Brought In Breach Of An Arbitration Agreement?
August 5, 2008... The question raised in West Tankers Inc. v. RAS, The Front Comor (House of Lords, February 2007) was whether it was consistent with the Brussels Regulation for a court of one EU Member State to restrain a person from commencing or...

Don't Be An Easy Mark: Steps To Avoid Substantial Damages For False Patent Marking.(Solo Cup Co.)(Case overview)
August 5, 2008... A recent district court decision on false patent marking shows how easy it is for a company to be exposed to expensive litigation and large statutory damages if it is not careful in monitoring how its products are marked. But as we discuss...

A Short Summary Of Short Selling Regulations.
August 5, 2008... On July 15, 2008, the SEC issued an emergency order barring naked short sales of the stock of Fannie Mae, Freddie Mac and 17 financial firms, including Lehman Brothers, Goldman Sachs, Merrill Lynch and Morgan Stanley. This action further...

Sexual Harassment - Who Do I Believe?
August 5, 2008... If employee C complains of sexual harassment by employee B, which employee B denies, and there is little or no corroborating evidence to support either employee's version of events, how can the employer reach a decision? This is...

Footpath Falls - Should Highway Authorities Be Concerned?
August 5, 2008... The Survival of Non Feasance In 2001 the High Court decided in Brodie -v- Singleton Shire Council and Ghantous -v- Hawkesbury City Council that the non feasance defence should no longer be available to highway authorities. This...