Mondaq Business Briefing articles from June 2009

Mondaq Business Briefing archives from June 2009

Brokers' Report - May 2009.
June 1, 2009... IIROC Investigations An April 9, 2009 decision of the British Columbia Securities Commission [BCSC], Golden Capital Securities Ltd., has changed the law regarding the conduct of such investigations to some extent by concluding that IIROC...

U.S. Senate And SEC Corporate Governance Proposals.(Securities and Exchange Commission)(Shareholder Bill of Rights Act of 2009)
June 1, 2009... In the wake of the continuing economic crisis, growing discontent among shareholders has resulted in increased political momentum toward providing public company shareholders with a greater voice in corporate governance matters. In response, on...

Disclosure Of Details Of ATE Insurance Cover In Litigation.
June 1, 2009... In a recent decision, the Technology and Construction Court ruled that a defendant was entitled to have access to the details of a group of claimants' After The Event (ATE) insurance policy. In the recent decision in Barr & Ors v Biffa...

Delegation Enhances Guernsey's Reputation In Washington.
June 1, 2009... The political establishment in the US is looking far more favourably on Guernsey than it once did, according to Guernsey's Chief Minister, Lyndon Trott. The Chief Minister has just returned from Washington where he was leading a delegation...

Pole Position.
June 1, 2009... Originally published in the HFM Week Guernsey Report, 2009, distributed May 2009 Since writing in this special report a year ago, a lot of water has passed under our bridge. Perhaps the most significant development has been the increased...

Extended Producer Liability: Quebec Launches Online Payment System For Container And Packaging Dues.
June 1, 2009... Copyright 2009, Blake, Cassels & Graydon LLP Originally published in Blakes Bulletin on Environmental Law, May 2009 On May 20, 2009, [ETH]co Entreprises Quebec ([ETH]EQ) put its reporting and payment system online, making it easier for...

Environmental Record of Supreme Court Nominee Sotomayor - Initial Impressions.
June 1, 2009... On May 26, President Barack Obama presented Judge Sonia Sotomayor as his nomination for the United States Supreme Court upon Justice Souter's retirement. Judge Sotomayor has served on the United States Court of Appeals for the Second Circuit...

Monitoring The SIGTARP: Continuing Lessons For Participants In The TARP Program.
June 1, 2009... Companies participating in the federal government's TARP program should be aware that the role of the Special Inspector General for the Troubled Assets Relief Program ("SIGTARP") in monitoring and investigating the use of TARP funds—and...

President's FY 2010 FDA Budget Proposes Food Industry User Fees.
June 1, 2009... Overview President Barack H. Obama's recently released Fiscal Year (FY) 2010 budget for the U.S. Food and Drug Administration (FDA) proposes historic spending for the agency of more than $3 billion, an increase of more than $500 million...

CMS Releases Draft Medicare Marketing Guidelines For Comment.
June 1, 2009... Late Monday, May 18, 2009, the Centers for Medicare and Medicaid Services (CMS) published in draft form revised Medicare Marketing Guidelines (Guidelines) for Medicare Advantage (MA) Plans, Medicare Part D Plans and 1876 Cost Plans. ...

Federal Regulation Of Swap Agreements Proposed.
June 1, 2009... Senate Bill would authorize Regulation of Swap Agreements On May 4, 2009, Senators Carl Levin, D-Michigan and Susan Collins, R-Maine introduced the Authorizing the Regulation of Swaps Act (the "Swaps Bill" or "Bill") which, if passed, would...

Supreme Court Upholds Employer Pension Payment Based In Part On Pre-PDA Differentiating Rule.
June 1, 2009... In a 7-2 decision, the Supreme Court on Monday decided that an employer's calculation of pension benefits that gave less retirement credit for pregnancy leave than for other medical leave, based on a rule applied only prior to enactment of the...

Misdelivery Claims In Hong Kong.
June 1, 2009... The Court of Final Appeal (the highest court in Hong Kong) recently handed down an important decision on claims concerning misdelivery of cargo in Carewins Development (China) Limited v Bright Fortune Shipping Limited (FACV No.13 of 2008, 12...

Congressional Action May Open The Door To A New Wave Of Fraud And False Claims Act Litigation.
June 1, 2009... Driven by increasing pressure to halt financial fraud and prevent misuse of government stimulus money, as well as continued concern about reported government contractor and Medicare abuses, Congress is revamping the False Claims Act for use as...

Growers: Protecting Yourself Against Winery Insolvencies.
June 1, 2009... California grape growers are used to relying on their statutory producer's lien (Food and Agricultural Code Sections 55631-55633) to protect against the risk of non-payment. However, when put to the test in a highly stressed financial...

Commodities Bulletin May, 2009.
June 1, 2009... COURT OF APPEAL REVERSES JUDGMENT IN FLUXO-CANE LITIGATION By Robert Wilson The decision of the Court of Appeal in ED&F Man Commodity Advisers Limited v. Fluxo-Cane Overseas Limited (13 May 2009) illustrates some of the potential pitfalls...

SICK Notes Or FIT Notes?
June 1, 2009... Every year it is estimated that around 350,000 people leave work to claim health-related benefits and around 172 million working days are lost due to sickness absence. The government believes that early work-focused healthcare and workplace...

Protecting The Aura Of Luxury: ECJ Guidance On Trade Marks.
June 1, 2009... Owners of luxury good brands will welcome the ECJ's decision in Copad SA v Christian Dior couture SA and others, Case C-59/08, ruling in favour of the Dior mark in a dispute relating to the sale of Christian Dior branded goods outside a...

Implications Of The Fair Work Act In A Contracting Economy.
June 1, 2009... Andrew Tobin, Partner Damian O'Connor, Special Counsel Rebekah Fryer, Associate Jessica Paten, Trainee Solicitor It is plainly obvious that many of the changes introduced by the Fair Work Act 2009 and the related legislation will impose...

IP Snapshot - May 2009.
June 1, 2009... TRADE MARKS Waterford Wedgwood plc v OHIM, ECJ, Case C-398/07, 7 May 2009 The ECJ has dismissed an appeal from the CFI which had found no likelihood of confusion between a logo mark for "Waterford Stellenbosch" for wines and the earlier...

Government Guidance - Significant Changes As A Further Part Of "Culture Change".
June 1, 2009... Introduction The Scottish Government have signalled a clear intention to try and change the approach to planning in Scotland as well as the legislative framework. At the Planning Summit held last year they revealed new guidance...

Kyocera Changes The Landscape For Relief In The International Trade Commission.
June 1, 2009... The International Trade Commission ("ITC") offers broad injunctive relief in the form of exclusion orders, which exclude infringing articles from importation into the United States. While the Federal Circuit's recent decision in Kyocera...

Courts Act To Protect Business Interests.
June 1, 2009... Andrew Tobin, Partner Damian O'Connor, Special Counsel Rebekah Fryer, Associate Jessica Paten, Trainee Solicitor In two recent decisions, Courts have protected the business interests of employers by awarding damages against former employees...

Canadian Life Insurers Assurance Facility launched.
June 1, 2009... On May 22, 2009, the Minister of Finance announced the launch of the Canadian Life Insurers Assurance Facility (CLIAF), which is intended to assist life insurance companies in accessing debt markets on competitive terms by insuring their...

Ontario Proposes Cap-And-Trade Legislation, While Federal Regulations Delayed To Match U.S. Timetable.
June 1, 2009... Following closely on the heels of Quebec's recent proposal for a provincial greenhouse gas ("GHG") cap-and-trade system, the Ontario government introduced enabling legislation on May 28, 2009 to allow for the implementation of a GHG...

Are You Affected By The Moratorium On Clearing High Value Regrowth?
June 1, 2009... The Bligh Government, in line with its election promise, recently introduced The Vegetation Management (Regrowth Clearing Moratorium) Act 2009 (the Act), which places a moratorium on the clearing of high value vegetation. The moratorium is...

Was/Now Pricing - When Is It Misleading?
June 1, 2009... Often retailers will advertise products for sale by showing a "was" price and comparing that price to the "now" price or "reduced price" in order to demonstrate how much a consumer will save by purchasing the product during the sale period. ...

Bilateral Investment Treaties.
June 1, 2009... The Czech Republic and Italy have agreed to end their bilateral investment treaty from 1 May 2009. Bilateral investment treaties (BITs) provide reciprocal protection for cross-border investments between the two treating countries. ...

SJ Berwin's Community Week: A Weekly Summary Of Competition Law And Policy Developments.
June 1, 2009... EU DEVELOPMENTS Online Commerce Roundtable report is published On 26 May 2009, the European Commission (the "Commission") published a report on the outcome of its cross-departmental consultation with industry members and leading...

Liquor Licence Applicants Win Their Fight To Be Afforded Procedural Fairness: A Landmark Appeal To The Supreme Court Of WA.
June 1, 2009... Article by Eagul Faigen and Nathalie Rassool On 5 September 2008, in the case of Hancock v Executive Director of Public Health [2008] WASC 224, Martin CJ in the Supreme Court of Western Australia quashed a decision of the Liquor Commission...

The Impacts Of The Australian Alcohol Guidelines For Low-Risk Drinking On The Liquor Industry.
June 1, 2009... On 6 March 2008 the National Health and Medical Research Council's (Council) Australian Guidelines To Reduce Health Risks From Drinking Alcohol (Guidelines) were released. The Guidelines replace the 2001 Australian Alcohol Guidelines,...

The Pendulum Swings Back: Licensee Responsible For The Death Of A Drunk Patron.
June 1, 2009... In January 2009, the Full Court of the Supreme Court of Tasmania in the case of Scott v C.A.L No 14 Pty Ltd handed down a decision which may impact severely on the treatment of a licensee's duty of care when a patron consumes liquor to a level...

New Year's Eve Celebrations With A BANG: The Liability Of The Licensee For The Criminal Acts Of Patrons.
June 1, 2009... On 26 February 2009 the New South Wales Court of Appeal dismissed an appeal against a decision of the New South Wales District Court, where a hotel operator (the appellant) was found to have breached its duty of care to two patrons who were...

Rudd Government Delivers A Fibre To The Home (FTTH) National Broadband Plan: A Commentary On The Future Of Telecommunications In Australia And Its Regulation.
June 1, 2009... On 7 April 2009 the Government announced plans to build a fibre to the home (FTTH) broadband network which would operate as an open access network, offering download speeds of up to 100 Megabits per second to 90% of Australian homes and...

Extended Producer Liability: Quebec Launches Online Payment System For Container And Packaging Dues.
June 1, 2009... Copyright 2009, Blake, Cassels & Graydon LLP Originally published in Blakes Bulletin on Environmental Law, May 2009 On May 20, 2009, [ETH]co Entreprises Quebec ([ETH]EQ) put its reporting and payment system online, making it easier for...

Mergers And Consolidations Of Cayman Islands Companies.
June 1, 2009... The Companies (Amendment) Law 2009 adopted this month in the Cayman Islands introduces a new and much-needed statutory merger regime which does not require court application or approval. Previously Cayman Islands companies could merge or...

PRC Anti-Monopoly Law: Practical Aspects For Practitioners On Prior Notification Of Concentration Of Undertakings.
June 1, 2009... The veto on March 18 of Coca-Cola's bid for China Huiyuan Juice Group ("Coca-Cola's case") by the Ministry of Commerce of the People's Republic of China ("MOFCOM") has incited much discussion about the implementation of the PRC Anti-Monopoly...

The DOL May Be Showing Up On Your Doorstep.
June 2, 2009... On March 25, 2009, the Government Accountability Office ("GAO") released a report which found that the Wage and Hour Department of the U.S. Department of Labor ("WHD") consistently falls short in properly investigating claims of wage and hour...

Pharmacapsules @ Gowlings: May 28, 2009.
June 2, 2009... Edited by Jennifer Wilkie & Chantal Saunders Biotechnology Clusters: Their Importance and Keys to Success Latest Report Shows Biotech Companies Facing Serious Financial Crunch Biotechnology Industry Organization (BIO) Comments on...

Salans Kyiv Tax Newsletter.
June 2, 2009... Salans is a full service international law firm with offices in Almaty, Baku, Barcelona, Beijing, Berlin, Bratislava, Bucharest, Budapest, Frankfurt, Hong Kong, Istanbul, Kyiv, London, Madrid, Moscow, New York, Paris, Prague, Shanghai, St....

New Disclosure And Oversight Requirements Affecting TARP Recipients And Investors In Legacy Assets Under PPIP.
June 2, 2009... Two of the provisions of the Helping Families Save Their Homes Act of 2009, signed into law on May 20, 2009, have significant impact on investors seeking to purchase legacy loans or legacy securities under the PublicPrivate Investment Program,...

New Guidelines Now Allow PRC Banks To Extend M&A Loans.
June 2, 2009... To promote the expansion of PRC companies domestically and internationally by mergers and acquisitions in the current global economic crisis, the China Banking Regulatory Commission has promulgated the "Guidelines on Risk Management for Loans...

New Swaps Legislative Initiative.
June 2, 2009... On May 14, Treasury Secretary Timothy F. Geithner sent a two-page letter to Congressional leaders asking for quick enactment of legislation in accordance with his proposal to regulate most derivatives in the United States, including credit...

SEPA's Thermal Treatment Of Waste Guidelines 2009.
June 2, 2009... Introduction SEPA has issued new Guidelines on the Thermal Treatment of Waste which update and replace those produced in 2004 and have the objective of ensuring that recovery of energy from waste is maximised as well as ensuring that new...

The Arbitration Bill - A New Beginning In Scotland?
June 2, 2009... Arbitration in Scotland Scotland, like many jurisdictions, has a long history of arbitration being an acceptable means of dispute resolution. Indeed a set of regulations made in 1695 (by the previous Scottish Parliament) still remain...

Proposed Changes To Public Procurement Laws.
June 2, 2009... The government intends to change the law governing public procurements, in two major phases. The first phase, which has already been sent to Parliament, contains changes designed to combat current economic difficulties, such as: allowing...

New Guidance On The Time Limits For Public Procurement Challenges.
June 2, 2009... Earlier this month the courts gave new guidance on the critical time periods that govern challenges for breaches of the Public Contracts Regulations 2006 ("the Regulations"). The case concerned the interpretation of the requirement that an...

Principal Changes To The Cayman Exempted Limited Partnership Law.
June 2, 2009... Cayman Islands Exempted Limited Partnerships ("ELPs") remain a popular choice of vehicle for the investment fund industry, most particularly in private equity fund structures. In recognition of their significance to the financial services...

IP Update - May 2009 - Part 1.
June 2, 2009... District Court Remand Orders to State Courts Are Appealable To Infringe Product-by-Process Claim, Must Practice the Process Setting a Lower Patent Misuse Standard? Safe Harbor Defense Is Available at ITC Use Filing Date of the...

Concept Of Property And Intellectual Property In Latvia - Part 1.
June 2, 2009... Contents: Implementation and development of the intellectual property Legislation on the intellectual property – most important stages of development Form of protection Priorities of protection Rights acquired...

IP Update - May 2009 - Part 2.(Revolution Eyewear, Inc.)(Aspex Eyewear, Inc.)(intellectual property)(Case overview)
June 2, 2009... Willful or Not; That Is the Question Sale of Keyword Advertisements Is Actionable Under Lanham Act Trademark Protection Limited Against Cybersquatters Lanham Act Controls Unauthorized Product Resales Geographic...

Guernsey's Chief Minister Briefs Leading UK MPs.
June 2, 2009... Guernsey's Chief Minister, Lyndon Trott, has followed up recent meetings with key opinion formers in Washington by briefing high-profile MPs in London about the Island's financial services industry. This included meetings with Liberal...

At The Forefront Of The Fund Sector.
June 2, 2009... Originally published in the HFM Week Guernsey Report, 2009, distributed May 2009 Kevin Gilligan of Louvre Fund Management tells HFMWeek how Guernsey is a leading financial force, particularly in the funds sector, and is prepared for the...

Ontario Prepares Legislative Groundwork For GHG Cap-And-Trade System.
June 2, 2009... On May 27, Minister of the Environment John Gerretsen introduced Bill 185, the Environmental Protection Amendment Act (Greenhouse Gas Emissions Trading), 2009. Bill 185 amends the Environmental Protection Act (EPA) to allow Ontario to...

Weekly Climate Change Policy Update - June 1, 2009.
June 2, 2009... Article by Kyle Danish, Shelley Fidler, Kevin Gallagher, Megan Ceronsky and Tom[sz]s Carbonell To receive the Weekly Update via email, visit our Sign Up/Subscribe page http://www.vnf.com/news-signup.html Commentary The Memorial Day...

Progress On The New Residential Zones.
June 2, 2009... The long awaited new (draft) residential zones were released by the State Government earlier this year and are contained in its report 'New residential zones for Victoria - Consultation Draft' (February 2009). The need for the new zones...

New Victorian Guidelines For Planing Permit Applications In Water Supply Catchment Areas.
June 2, 2009... When applying for a planning permit to develop land in Victoria within an open, potable water supply catchment, the application must have regard to the Guidelines for Planning Permit Applications in Open, Potable Water Supply Catchment Areas...

An Essential Tool In Turbulent Times.
June 2, 2009... Originally published in the HFM Week Guernsey Report, 2009, distributed May 2009 Corporate governance is an essential mechanism in enabling companies to minimise their risk of corporate failure, says Martin Tolcher of Legis Fund Services....

Clause 52.17: A Greater Focus On Native Vegetation Conservation Within Residential Zones.
June 2, 2009... The Tribunal's decision in Reeve v Hume CC & Ors [2009] VCAT 65, handed down in January this year, has significant implications for the development of land which requires the removal of native vegetation. In Reeve, the Tribunal displaced...

Financiers, Lenders And Mortgagees - New Laws Focus On Protecting Tenants' Rights When Mortgagee Enters Into Possession.
June 2, 2009... The Minister for Fair Trading, Virginia Judge, is proposing to introduce the Residential Tenancies Amendment (Mortgagee Repossessions) Bill 2009 (the Mortgagee Repossessions bill) into the legislative assembly on 2 June 2009. According to...

Communications Law Bulletin, May 2009.
June 2, 2009... The Month in Brief As we go to press, maneuvering continues over key appointments at the Federal Communications Commission ("FCC" or "Commission") and the National Telecommunications and Information Administration ("NTIA"), and the FCC has...

Recent Reports To Congress On Broadband Investment Provide Details On Federal Stimulus Funding Opportunities.
June 2, 2009... On May 18, 2009, the two federal agencies that will distribute $7.2 billion to support broadband projects under the American Recovery and Reinvestment Act (ARRA) reported to Congress on their progress in implementing the new stimulus law. The...

FDA Seeks Comments On "Risk Information" In Advertising From Pharmaceutical And Medical Device Manufacturers.
June 2, 2009... On May 26, 2009, the FDA issued and gave interested parties 90 days to comment on a draft guidance for industry titled "Presenting Risk Information in Prescription Drug and Medical Device Promotion." Drafted with the input of at least four FDA...

Update On The CRTC's National Do Not Call List.
June 2, 2009... The Canadian Radio-television and Telecommunications Commission ("CRTC") launched its National Do Not Call ("DNC") List on September 30, 2008. On April 20, 2009, it concluded a follow-up proceeding to address three policy issues that had arisen...

Google's Street View: Too Revealing?
June 2, 2009... Reprinted with permission from FindLaw.com Google's Street View panoramic photo mapping service allows users to see street level photographs of specific locations, to take virtual walks while panning, rotating and zooming through cities...

Protecting Interests In Divorce Proceedings.
June 2, 2009... The C Trust Company Limited and Advocate Mark Temple as Guardian for LD and ZD, Royal Court, unreported judgment 12 March 2009 Facts The trustee in this case sought the blessing of the Royal Court to certain decisions made in relation to...

Utilising British Virgin Islands And Cayman Islands Entities For Private Equity Investment Into China.
June 2, 2009... As offshore legal counsel based in Hong Kong, we commonly deal with the book ends of inbound private equity investment into the People's Republic of China ("PRC"), that being, the initial establishment of the offshore investment fund structure,...

Insurance Market Update - The Deloitte View For Non-Life Insurers, May 2009.
June 2, 2009... Welcome to the May edition of the Insurance Market Update, in which we focus on issues in the non-life insurance industry. Solvency II remains high on many insurers' agendas as they begin their planning activities in earnest and consider...

IceTv Defeats Channel 9 In High Court Over Electronic Program Guide: What Does It Mean For Free To Air TV And Telstra's Other Monopoly?
June 2, 2009... The recent High Court decision in favour of IceTV will have far reaching implications for all Australians. As might be expected it contains an interesting discussion about the concepts of copyright law and when copyright is created. However it...

Super Tax On Overtime.
June 2, 2009... Article by Damian O'Connor, Special Counsel New public ruling The Australian Taxation Office has released a public ruling confirming that employers do not have to make compulsory superannuation contributions in respect of overtime payments....

Disability Discrimination And Publicly Accessible Buildings: More Certainty For The Property Industry.
June 2, 2009... Both State and Federal legislation prohibit discrimination against people with disabilities. One of the most problematic areas of anti-discrimination law, from a compliance perspective, arises for owners, managers and developers of publicly...

Recent Developments Of Importance: Corporate And Commercial Litigation.
June 2, 2009... Originally published in the 2009 edition of The Canadian Legal Lexpert Directory. Important developments have taken place this past year regarding litigation related to transactions and capital markets that will have long-term consequences...

Continuing To Be A Boon For Growth.
June 2, 2009... Originally published in the HFM Week Guernsey Report, 2009, distributed May 2009 Andrew Howat of Capita Financial Group talks to HFMWeek about the effects of the economic crisis, the changing expectations and the future of the hedge fund...

SHARE. AWARE. BEWARE. Transparent & Available Employment Policies Should Outline Code Of Required Conduct And Consequences Of Misconduct.
June 3, 2009... Amid parliamentary inquiries into travel and hospitality expenses, Canada's federal privacy commissioner, George Radwanski, resigned from his post in June 2003, just three years into his seven-year term. Several months later, the auditor...

Ofcom Relaxes Teleshopping Rules For Terrestrial Television.
June 3, 2009... On 26 May 2009, Ofcom announced in its Code on the Scheduling of Television Advertising that it would partially lift the ban on teleshopping for some of the UK's largest terrestrial television channels (ITV1, Channel 4, Five and S4C1) which...

Expenses Now Available In Fatal Accident Inquiries.
June 3, 2009... In a significant judgement issued by the Inner House of the Court of Session in Edinburgh last week, the Lord President, Lord Reed and Lord Marnoch ruled that expenses are recoverable in Fatal Accident Inquiries (FAIs) held in Scotland (under...

An Eye On Workplace Harassment Liability In NYC.
June 3, 2009... Previously published in Law360, New York (May 21, 2009) In recent months, a federal district court judge and a New York state court appellate judge have held that the New York City Human Rights Law ("NYCHRL") should be more liberally...

Health And Safety Newsletter - Summer 2009.
June 3, 2009... Welcome to the Summer Health and Safety Newsletter, bringing you the latest updates on Health & Safety cases and their wider implications for the industry. This edition covers the following: First charges brought under the Corporate...

Employee Options Exercised Before 10 April 2003 - Revised HMRC CGT Guidance.
June 3, 2009... HMRC has changed its interpretation of the capital gains position for shares acquired before 10 April 2003 from the exercise of unapproved options and Enterprise Management Incentive ("EMI") options. The main effect of the revised...

Congress Amends Civil False Claims Act.
June 3, 2009... The amendments expand the scope of liability under the False Claims Act and give the government enhanced investigative powers. On May 20, 2009, President Obama signed into law the 2009 amendments to the Civil False Claims Act contained in...

California Supreme Court Upholds Ban On Same-Sex Marriage, But Recognizes Marriages Performed In 2008.
June 3, 2009... Employers should review their benefit plans and programs to ensure that their plans are properly drafted to reflect the intended coverage or exclusion of same-sex partners and compliance with applicable laws. On May 26, 2009, the California...

SEC Charges Hedge Fund Manager And Bond Salesman In First Insider Trading Case Involving Credit Default Swaps.
June 3, 2009... On May 5, 2009, the U.S. Securities and Exchange Commission ("SEC") brought an action in the U.S. District Court for the Southern District of New York alleging the "the first insider trading enforcement action involving credit default swaps."1...

Conducting An Effective Internal Corporate Investigation: Best Practices, Pitfalls To Avoid.
June 3, 2009... The Benefits of the Effective Internal Corporate Investigation We are in an age of intense scrutiny of corporations. This scrutiny is coming from many directions: from government agencies like the U.S. Department of Justice, the U.S....

Florida Government And Politics Weekly Update (Week Of May 18, 2009).
June 3, 2009... Politics: Governor Charlie Crist's Announcement Kicks Off the 2010 Election Cycle On May 12, 2009, Gov. Crist made the expected announcement that in 2010, he will run for the U.S. Senate seat being vacated by Republican Sen. Mel Martinez...