Mondaq Business Briefing articles from July 2006

Mondaq Business Briefing archives from July 2006

Texas Governor Signs New Margin Tax, Constitutionality Is Called Into Question.
July 1, 2006... Originally published May 2006 On May 18, 2006, Texas Governor Rick Perry signed into law House Bill 3 (HB 3), which dramatically changes the taxation of businesses in Texas. As thoroughly discussed in Sutherland's May 9, 2006 Legal...

Sixth Circuit Court of Appeals Interprets the Duties Imposed on Banks That Market Derivative Products and Rejects a Duty of Appropriateness.
July 1, 2006... Originally published May 22, 2006 On May 17, 2006, the United States Court of Appeals for the Sixth Circuit issued its Opinion in Power & Tel. Supply Co. v. SunTrust Banks, Inc., 2006 U.S. App. LEXIS 12087, 2006 FED App. 166P (6th Cir....

Factoring Licenses May Be Abolished.
July 1, 2006... By Dmitry Gubarev and Oxana Gorshkolepova The RF Duma is considering an amendment to the Civil Code that, if ratified, will resolve an inconsistency in Russian law and open the door for any commercial entity to engage in factoring. On...

U.S. Supreme Court Dismisses Labcorp's Petition At The Eleventh Hour.
July 1, 2006... In Lab. Corp. of Am. Holdings v. Metabolite Lab., Inc., the U.S. Supreme Court dismissed Laboratory Corporation of America Holding's (LabCorp) petition over a strong dissent by Justice Breyer (joined by Justices Stevens and Souter) arguing that...

CMS Issues Long Awaited Medicare Enrollment Rule.(Centers for Medicare & Medicaid Services)
July 1, 2006... Executive Summary Action: On April 21, 2006, the Centers for Medicare & Medicaid Services ("CMS") issued a final rule creating new regulatory standards governing the Medicare enrollment process for health care providers and suppliers. ...

Supreme Court Broadens Employee Protection Against Unlawful Retaliation.
July 1, 2006... On June 22, 2006, the United States Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White, No. 05-259 (June 22, 2006), defined what constitutes an "adverse action" sufficient for an employee to successfully assert a Title VII...

Employment Arbitration Policies Must Expressly Exclude NLRA Charges.
July 2, 2006... All private sector employers that maintain mandatory employment arbitration policies for nonunion employees should review those policies as a consequence of the recent decision of the National Labor Relations Board ("the Board" or NLRB) in...

FERC Proposes Significant Changes to Open Access Transmission Regulations and Tariff.(Federal Energy Regulatory Commission)
July 3, 2006... Originally published May 24, 2006 On May 18, 2006, the Federal Energy Regulatory Commission ("FERC") issued a 539-page Notice of Proposed Rulemaking ("NOPR") that proposes changes to the regulations and pro forma open access transmission...

Non-Members Must Comply with Subpoenas Issued by NASD Panels, Georgia District Court Holds.(National Association of Securities Dealers)
July 3, 2006... Originally published May 31, 2006 NASD arbitration panels have the power to issue subpoenas requiring non-member entities to produce documents prior to a hearing, a Georgia district court recently ruled. The court also held that an action...

Payments to Universal Communications Services Reserve Fund Declared Unconstitutional.
July 3, 2006... The RF Constitutional Court (the "Constitutional Court") recently ruled in favor of public communications network operators in a case initiated by the Koryaksky Autonomous District Duma. The Constitutional Court declared unconstitutional...

Enforcement of Decisions of the European Court for Human Rights.
July 3, 2006... On March 20, 2006, the President of Ukraine signed into law Law No. 3477-IV "On the Procedure for Enforcement of Decisions of the European Court for Human Rights." This law is a further step in the process of bringing Ukraine's enforcement...

Developments In The Cypriot Offshore Oil and Gas Industries.
July 3, 2006... The reported existence of oil and natural gas reserves off the coast of Cyprus has prompted the Republic of Cyprus to introduce modern legislation to regulate the oil and gas sectors and to claim the Exclusive Economic Zone of the island in...

Corporate Commercial Litigation - Recent Developments Of Importance.
July 3, 2006... Reprinted with Permission from the 2006 issue of the Canadian Legal Lexpert Directory. (c) Thomson Carswell." The authors gratefully acknowledge the considerable contribution of Eric Block, a Toronto member of the litigation group of...

AIM: Gateway to European Capital Markets.
July 4, 2006... Reprinted with Permission from the 2006 issue of the Lexpert/ALM Guide to the Leading 500 Lawyers in Canada. (c) Thomson Carswell." Since its launch in 1995, the AIM Market (AIM) of the London Stock Exchange (LSE) has become a leading...

Energy (electricity): Recent Developments of Importance.
July 4, 2006... Reprinted with Permission from the 2006 issue of the Lexpert/ALM Guide to the Leading 500 Lawyers in Canada. (c) Thomson Carswell." PROJECT DEVELOPMENT The approach to restructuring electricity markets has differed across Canada as a...

Telecommunications - Recent Developments Of Importance.
July 4, 2006... Reprinted with Permission from the 2006 issue of the Lexpert/ALM Guide to the Leading 500 Lawyers in Canada. (c) Thomson Carswell." Telecommunications Policy Review Panel Charts a New Course for Canadian Telecommunications The...

Public Employers Gain Measure of Protection for Employment Decisions Based on Statements Made as Part of Job Duties.(Case overview)
July 4, 2006... The United States Supreme Court's decision in Garcetti, et al. v. Ceballos (Case No. 04-473, May 30, 2006) offers some protection to public employers regarding employment decisions based on statements made as part of an employee's official...

New Finnish Takeover Regime.
July 4, 2006... Implementation of Takeover Directive The provisions of the Finnish Securities Markets Act (495/1989) (the "SMA") concerning public tender offers are currently under revision. The proposed amendments to the SMA implement Directive...

OFT fines double glazing cartelists.
July 4, 2006... The OFT announced on 29 June 2006 that it has fined three members of a double glazing cartel approximately [pounds]900,000. EWS (Manufacturing) Limited, Thermoseal Group Limited and Double Quick Supplyline Limited were fined for their...

Competition Commission facilitates switching of supplier in domestic bulk LPG market.
July 4, 2006... On 29 June 2006 the Competition Commission (CC) published its final report into the domestic bulk LPG market, following a market investigation into the sector. The CC's report found there is an adverse effect on competition in the supply...

MasterCard interchange fees - EU and UK competition developments.
July 4, 2006... The European Commission announced on 30 June 2006 that it has sent a supplementary Statement of Objections (SO) to MasterCard in relation to its cross-border interchange fees (fees paid by merchant banks to card issuing banks for over the...

New Immunity Guidelines for Cartels in Germany.
July 4, 2006... Whistleblowing has never been more attractive in Germany. On March 15, 2006, the Federal Cartel Office ("FCO") published new guidelines for immunity and leniency in cartel matters ("2006 Guidelines"). The 2006 Guidelines amend and restate the...

Value For Money In Global Patent Litigation: Relative Cost And Time To First Judgment In Eight Key Countries.
July 4, 2006... Take home Relative cost and time to first instance judgment are important components of global litigation strategy. A fast decision in a key jurisdiction will create an early strategic advantage. However, expensive litigation in a market...

A Freeze on Duties of Care?
July 5, 2006... The House of Lords this week delivered an important judgment in HM Commissioners of Customs and Excise v Barclays Bank plc (21 June 2006) in which the issue was whether a bank, notified by a third party of a freezing order against one of the...

Global Video Inc. Gets No Credit.
July 5, 2006... To promote cultural programming in film, the Canadian government provides tax incentives to producers who make films with significant Canadian cultural content. Many producers rely on these tax incentives to make Canadian films they otherwise...

Personal Property Securities - Proposals for Reform.
July 5, 2006... Key Point Reform of Australian personal property securities is back on the agenda. We discuss the new proposals. Personal property securities are securities which may be given over many different classes of property, except land....

"Future" Creditors and Insolvent Companies.
July 5, 2006... Key Point Recent decisions have looked at two aspects of the issue of future creditors. In two recent decisions the New South Wales Supreme Court has considered the position of "future creditors" in deciding whether to allow an...

Employment Court Confirms 'Statutory Curb' On Ability To Justify Dismissals.
July 5, 2006... In late 2004 a new definition of what counts as 'justifiable' dismissal or other employer action was inserted into the Employment Relations Act (the ERA). The Employment Court has just issued a definitive judgment confirming that the new test,...

IRS Releases Interim Guidelines for Section 179D Energy-Efficient Commercial Buildings Deduction.(Internal Revenue Service)(Law overview)
July 5, 2006... The IRS recently released interim guidelines pertaining to the deduction for energy-efficient commercial buildings under Section 179D of the Tax Code. This deduction was made available to building owners and leaseholders pursuant to the Energy...

California Appellate Court Weighs In on Section 1800 and Federal Preemption.
July 5, 2006... California Code of Civil Procedure allows an assignee under a general assignment for the benefit of creditors to recover what under the Bankruptcy Code would be called preferential transfers. However, the U.S. Court of Appeals for the Ninth...

Corporate Fraud And The Sarbox Culture.(rules)
July 5, 2006... Corporate fraud continues to be a hot topic in the United States with high profile indictments of company executives, the loss of billions of dollars of shareholders' money and, in some cases, the loss of thousands of jobs. This news story...

Employee Internet And E-Mail Use: Frequently Asked Questions.
July 5, 2006... Q: How can an employer best guard against misuse of internet and e-mail services provided to employees? A: Providing employees with access to the internet and an e-mail account may result in abuse. Employees may spend too much time using...

What Hath Electronic Discovery Wrought?
July 5, 2006... Electronic discovery issues have been on the radar screen of every lawyer involved in litigation for several years now. Last spring's decision in Coleman Holdings, Inc. v. Morgan Stanley & Co., however, raised the stakes considerably for...

FRC publishes revised version of the Combined Code.(Financial Reporting Council)
July 5, 2006... On 27 June the Financial Reporting Council (FRC) published details of the amendments to the Combined Code on Corporate Governance that will take effect in relation to financial years beginning on or after 1 November 2006. Only four substantive...

Taxation of employee termination payments.
July 5, 2006... The availability of the [pounds]30,000 income tax and complete National Insurance exemption for payments in lieu of notice is a common question for HR professionals. Issues generally centre on whether they are contractual payments. A...

Now You Have It, Now You Don't: Steinbeck Case Highlights Impact of Copyright Termination Right.
July 5, 2006... Article by Roberta Jacobs-Meadway & Talitha West On June 12, 2006, in one of the first federal court decisions ever to address the issue of "recapturing" copyright ownership, U.S. District Judge Richard Owen of New York's Southern District...

Life cover only benefits in occupational pension schemes.(Pensions Act 2004)(Law overview)
July 5, 2006... The Pensions Regulator has now issued guidance on life cover only arrangements in light of Section 255 of the Pensions Act 2004 (the "Act") and schemes will need to consider any life cover only arrangements they have in the light of this...

Directors' Discretion In The Sale Of Corporate Assets.
July 5, 2006... In an environment where Canadian corporations are increasingly being offered enhanced multiples by enthusiastic private equity groups and moneyed international buyers, directors may find themselves in the position of having to decide (and in...

Representation And Warranty Insurance: A Better Way To Get Deals Done?
July 5, 2006... Representations and warranties in a purchase agreement typically affirm key facts about the company or assets being purchased. How to deal with the possibility of a breach of a representation or warranty is therefore a central question in any...

FRB Governor Makes Presentation Concerning Enterprise Risk Management.
July 5, 2006... Developments of Note FRB Governor Makes Presentation Concerning Enterprise Risk Management SEC Commissioner Nazareth Discusses Soft Dollars, Best Execution and Mutual Fund Fees and Expenses at Mutual Fund Directors Forum Workshop ...

Hedge Fund Rule Vacated by United States Court of Appeals.
July 5, 2006... In a ruling issued on Friday, June 23, 2006, the United States Court of Appeals for the District of Columbia Circuit vacated Rule 203(b)(3)(2) (the "Rule") promulgated under the Investment Advisers Act of 1940 (the "Act"), which had been...

Energy Client Alert, July 2006.
July 5, 2006... FERC Approves Forward Capacity Market for New England On March 6, 2006, ISO New England Inc. ("ISO-NE"), together with public utility regulators from four of the six New England states, and many generation owners, transmission owners, and...

Plan Beneficiaries Cannot Unilaterally Terminate Pension Trust.
July 5, 2006... The Supreme Court of Canada ("SCC") held on June 22 in Buschau1 that the members and former members of a defined benefit pension plan cannot unilaterally compel termination of the plan's trust for the purpose of accessing accumulated actuarial...

Indemnities, Insurance And Compensation For An Independent Review Committee.
July 5, 2006... Managers of investment funds will have to address concerns relating to the personal liability of IRC members if they hope to attract and retain the most qualified individuals for their IRC. In addition to understanding the scope of their...

RIBA Sustainable Living exhibition at Idea Store in July.(Royal Institute of British Architects)(competitions on home designs for London architects)
July 5, 2006... An exhibition of current examples and challenging new ideas for future design by London architects will be at the Idea Store Whitechapel, 319 Whitechapel Road, London E1 1BU from 7 July to 23 July 2006. Sustainable Living by Design will feature...

BPF Welcomes Barker's Interim Report.(British Property Federation)(Kate Barker)(Brief article)
July 5, 2006... The British Property Federation, which represents commercial property developers across the UK, has welcomed Kate Barker's interim report into Land Use Planning. The BPF sees the publication of the interim report as an unmissable...

Property Industry: Get Behind The 2012 Legacy.
July 5, 2006... The British Property Federation together with the Urban Land Institute is calling for the ODA to set up a shadow body to concentrate on the Olympic legacy. This will ensure that commitments to regenerate east London begin immediately rather...

The Economics Of The Olympics - Background Facts and Figures.(British Property Federation)(planning for Olympic 2012)
July 5, 2006... The British Property Federation together with the Urban Land Institute is calling for the ODA to set up a shadow body to concentrate on the Olympic legacy to avoid 'doing an Athens' in London after 2012. For those living in east London,...

Project 'Pressure Gauge' Takes Heat Off Programme Managers.
July 5, 2006... Unique Heat Mapping Technology Provides Unprecedented Visibility Into Project Progress and Pain-Points LONDON - June 29, 2006 - BuildOnline UK today launches the first 'heatmap-based' programme management system. Designed to give project...

Queen's Awards Seek Top Construction Companies.
July 5, 2006... Applications Invited for UK's Most Prestigious Business Accolade The call for entries goes out this month for the 2007 Queen's Awards for Enterprise - the UK's top business awards, widely regarded as the equivalent of 'corporate...

Winding Up The Pressure.- Category 5 Hurricanes Are Currently Being Experienced In Cambridge, Uk.
July 5, 2006... Cambridge, UK and London, Ontario, June 26, 2006 --- Following a year of design and development work, Cambridge Consultants is testing its novel wind simulator, before delivery to The University of Western Ontario (Western) for pioneering...

Gleeds Gulf Partner Presented With Award By UAE Crown Prince.(United Arab Emirates)(Brief article)
July 5, 2006... Gleeds, the international Management and Construction Consultancy is celebrating a prestigious award given to its Gulf joint venture partner, Altorath Engineering Consultants, (AEC) for its work in the United Arab Emirates (UAE). A joint...

Solar Integrated Reports 2005 Achievements and Financial Results.(Financial report)
July 5, 2006... Delivers over 200% revenue increase while strengthening growth platform London, UK, May 25, 2006 - Solar Integrated Technologies, Inc. (AIM: SIT.LN), a leading provider of non-residential Building Integrated Photovoltaic (BIPV) roofing...

China Watch: Arbitration in India and China-Concerns and Options.
July 5, 2006... India is now the fourth largest economy in the world and the second fastest growing economy in the world. With consistent 7% growth during the past few years it is chasing and catching the Chinese Dragon, which is trying to depress a growth...

Workplace Bullying.(management of employees with co-workers)
July 6, 2006... Allegations of workplace bullying seem to be all the rage. There has been a marked increase in personal grievances relating to bullying. These have taken the form of grievances based on constructive dismissal or unjustified disadvantage claims...

Mediation Confidentiality?
July 6, 2006... The Court has recently clarified the commonly understood maxim that what goes on at mediation stays at mediation. In the case of Jesudhass v Just Hotel the Court found that confidentiality doesn't stretch quite as far as most expect. The...

TSX Issuers Should Seek Shareholder Approval at their Next AGM to Amend Security Based Compensation Plans.(Toronto Stock Exchange)(annual general meeting)
July 6, 2006... Effective June 30, 2007 the Toronto Stock Exchange (TSX) will no longer permit issuers with security based compensation arrangements that have amendment procedures that fail to meet TSX standards to make even minor "housekeeping" amendments to...

Important June 30, 2006 Deadline Approaching.
July 6, 2006... This Alert is intended to remind our bondholder, bond trustee and bond insurer clients and friends about an approaching deadline to perfect security interests in collateral. Though the filing requirements are highly technical, failure to comply...

Take A Look: Music On The Infringement Hook!
July 6, 2006... Music seems to be one of the most susceptible areas to copyright infringement. While the music of a movie is often its Unique Selling Point (USP), upcoming release, the music to the Bollywood "Aryan - the Unbreakable" seems to have landed...

Beyond Facade...(Dabur India Ltd false advertising lawsuit)
July 6, 2006... In the battle to acquire higher market shares, advertising and marketing strategies seem to play a key role. While catching the 'Consumer's Eye' is the primary objective, portrayal of competitive brands as the 'inferior lot', is perhaps the...

Scotch Whisky "Order" Prevails In India.(marketing and prevention of duplicates)
July 6, 2006... Competition in the national and global markets has intensified bringing issues of identification and positioning to the forefront. Every product in the market tries carving a niche based on the strong customer base it builds-up on the brand...

International Client Alert, July 5, 2006.(House Financial Services Committee passed and reported out, its proposed legislation relating to acquisitions of U.S. firms and interests by foreign firms.)(Department of Commerce publishes procedures for determining whether to exempt imported emergency relief supplies from antidumping and/or countervailing duties.)(Bureau of Customs and Border Protection enforces trade partnership program.)
July 6, 2006... House Committee Sends Reform Bill to the Floor On June 14, 2006, the House Financial Services Committee passed and reported out, by a vote of 64-0, its proposed legislation relating to the procedures under which the Committee on Foreign...

Objective Rule Triggering Exclusivity Period for Generic Drug Manufactures Affirmed.
July 6, 2006... In yet another chapter of a long and convoluted history involving generic versions of the drug Pravachol, the U.S. Court of Appeals for the District of Columbia Circuit summarily affirmed a refusal to grant a preliminary injunction forbidding...

Functional Recitations Are Not Limited by the Way in Which the Corresponding Disclosed Structure Operates.
July 6, 2006... Over a vigorous dissent, a panel of the U.S. Court of Appeals for the Federal Circuit vacated a grant of summary judgment, finding that the district court had improperly imported unclaimed functions into a means-plus-function claim limitation....

Non-Infringement Opinion of Patent Counsel Based on Incomplete Facts May Be Disregarded.(Case overview)
July 6, 2006... Upon examination of the evidence weighed by the jury, and despite a showing that the defendant had obtained advice of legal counsel as to non-infringement, the U.S. Court of Appeals for the Federal Circuit upheld the jury's verdict of willful...

Supreme Court Requires "Significant Nexus" to Navigable Waters for Jurisdiction under Clean Water Act s.404.
July 6, 2006... On June 19, 2006, the Supreme Court handed down its decision in Rapanos v. United States, (No. 04-1034), a case that federal regulators, states, property rights activists and environmental groups all hoped would clarify whether, and the extent...

Penalizing Applicants and Employees For Smoking: A Potential Smoking Gun?
July 6, 2006... Faced with skyrocketing annual increases in health care and workers' compensation premiums, employers are looking for ways to manage the health and health care costs of the workforce. Employers have increasingly focused on employee lifestyle...

Climate Change and Sustainable Energy Act 2006.
July 6, 2006... The Climate Change and Sustainable Energy Bill received Royal Assent on 21 June 2006. The main purpose of this new legislation is to enhance the UK's contribution to combating climate change. The first provisions will come into force after 21...

Environment calendar - July 2006.(Calendar)
July 6, 2006... The environment calendar highlights key dates for proposed and existing legislation and policy and closing dates for consultation papers relating to major environment issues in the EU and England. It provides a useful tool for environment...

Brokers' right to offset claims recoveries against premium due.
July 6, 2006... The Commercial Court recently delivered its latest judgement in litigation arising out of unpaid premium under marine facultative reinsurance placed in the London market by Heath for Venezuelan insurers, Banesco. The Court's decision in Heath...

Perspective: Let Global Online Freedom Ring?
July 6, 2006... At this time of year in the United States, we celebrate freedom and independence with parades and fireworks. The Internet is not bounded by national borders, but there certainly are differing levels of online freedom for Netizens around the...

U.S. Court Strikes Down SEC's Hedge Fund Rules.
July 6, 2006... By Edwin Laurenson, Joseph E. Suh, John J. Sullivan, Nick Terras and William Yonge On June 23 a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously invalidated the U.S. Securities and Exchange...

Same-Gender Marriage Developments Force Benefit Plan Sponsors to Reconcile Conflicting Messages.
July 6, 2006... Federal and state courts, legislatures, and voters in the United States have recently weighed in on the debate surrounding the legal recognition of same-gender marriage. Unfortunately, those voices give employers a number of mixed messages with...

NSW Aged Care & Retirement Villages Update.
July 6, 2006... Contents Minister announces random inspections of aged care homes Accommodation bond changes passed by Parliament Minister Announces Random Inspections Of Aged Care Homes Aged care homes will be subject to unannounced...

Potential Georgia Tax Changes: Georgia's Tax Reform Committee Holds Initial Meeting.(government stakeholders)
July 7, 2006... In the past legislative session, the Georgia House of Representatives created the Comprehensive Tax Reform Study Committee (the "Committee") to study Georgia's current tax system and to determine how best to modernize and revitalize the state's...

Protecting Your Status As An Additional Insured.
July 7, 2006... Article by: Deborah Ballati, Esq, Dennis Cusack, Esq, William Friedrich, Esq, John Green, Esq, Mary McCutcheon, Esq., David Smith, Insurance & Risk Management Consultant The concept of Additional Insured status has always been better than...

Transmissions of Business Under WorkChoices.
July 7, 2006... WorkChoices (the amendments to the federal workplace relations legislation) commenced this Monday, 27 March 2006. Parties involved in transmissions of business where employees are transferring should note that: incoming employees will...

New Maximum Rate for Interest, Fees and Charges - ACT and NSW.(New South Wales)
July 7, 2006... The maximum that lenders may charge under a UCCC credit contract for interest, fees and charges will be 48% per annum, following an amendment to the Consumer Credit Act in NSW and ACT. The NSW amendment is contained in the Consumer Credit...

Australian CGT For Foreign Residents - Changes To Capture Provisions.(capital gains tax)
July 7, 2006... The Tax Laws Amendment (2006 Measures No 4) Bill 2006 (Bill) proposes changes to Australian capital gains tax (CGT) for foreign residents, providing them with greater flexibility and efficiency in structuring their Australian investments and...

Burlington v. White.
July 7, 2006... Late last week, the U.S. Supreme Court resolved a four-way split among the U.S. Courts of Appeals regarding the standard for retaliation claims under Title VII. In a decision that has potentially significant implications for employers, the...

Another Court OK's Summary Dismissal of NASD Arbitration.
July 7, 2006... A federal court in Washington State has joined several other courts in ruling that a NASD arbitration panel may grant a motion to dismiss without first holding an evidentiary hearing or allowing discovery. See Allen v. RBC Dain Rauscher, Inc.,...

NYSE Proposes Amendments to Proxy Voting Rules.(New York Stock Exchange)
July 7, 2006... In April 2005, the New York Stock Exchange (NYSE) impaneled a special committee, composed of representatives from issuers, brokers, the legal community and institutional and individual investors, to review the NYSE rules regulating the proxy...

Supreme Court Expands Scope of Unlawful Retaliatory Conduct.
July 7, 2006... As employers well know, it is often management's response to a complaint of discrimination, rather than the underlying action complained of, which can lead to liability under the anti-discrimination statutes. In such cases, liability is founded...

What to Do When the Sheriff Comes Calling-Nine Steps in Responding to SEC Enforcement Calls.(Securities and Exchange Commission)
July 7, 2006... SEC enforcement activity with respect to hedge funds increased significantly in 2005 and is almost certain to increase again in 2006. The outcome of an SEC investigation may involve disgorgement of profits, civil monetary penalties, suspensions...