Mondaq Business Briefing articles from March 2008

Mondaq Business Briefing archives from March 2008

New Isle Of Man Fund Launched On 1st November 2007.
March 2, 2008... In September 2006 the Isle of Man Funds Review Group (the "FRG") was established and charged with the task of reviewing the Isle of Man's investment funds strategy. The FRG comprised leading members of both the public and private sector. ...

Proposed New Licensing Policy For Specialist Hedge Fund Operations.
March 2, 2008... Another initiative identified by the Isle of Man Funds Review Group ("FRG") is to position the Island as a preferred location for the establishment of front and middle office operations for global fund managers. As a result the Isle of Man...

Review And Consolidation Of Financial Services Legislation.
March 2, 2008... The Isle of Man Financial Supervision Commission (the "FSC") is currently undertaking a consolidation and review of all of its financial services regulatory legislation with the aim of consolidating this into one statute (to be called the...

Isle Of Man Companies Act 2006: 12 Months On.
March 2, 2008... The 2006 Act represents the gold-standard for international special purpose vehicles, and whilst based on familiar concepts, it sweeps away some of the more traditional company law requirements which continue to apply to companies incorporated...

Intellectual Property Alert: The London Agreement.
March 2, 2008... The London Agreement (the "Agreement") will come into force on 1 May 2008 and will enable a reduction in the cost for obtaining patents in Europe because it will significantly reduce post-grant translation costs in Europe. Up to now, in...

Harmonized Take-Over Bid And Minority Protection Regimes In Effect.
March 2, 2008... Effective February 1, 2008, Canadian securities regulators have adopted similar rules and policies in an effort to harmonize the fragmented regulatory regime governing take-over and issuer bids in Canada. Rather than constituting a complete...

Hospital Procurement: What You See Is Not What You Get!
March 2, 2008... It's often assumed that the provisions set out in a bid call document - such as a Request for Proposals (RFP) or a Request for Information (RFI) - make up the entire legal framework that applies to a hospital running a procurement process....

Department Of Labor Publishes Proposed FMLA Regulations.
March 3, 2008... On February 11, 2008, the Department of Labor (DOL) published proposed revisions to the regulations implementing the Family and Medical Leave Act (FMLA). The following is a summary of the principal proposed regulatory changes: Serious...

SEC Adopts Rule 144 And Rule 145 Amendments.(Securities and Exchange Commission )
March 3, 2008... Introduction On December 6, 2007, the Securities and Exchange Commission (the "SEC") adopted amendments to Rules 144 and 145 under the Securities Act of 1933, as amended (the "Securities Act").1 In the adopting release, the SEC stated that...

Flaherty Foregoes New Shoes To Deliver Budget Message.
March 3, 2008... "meeting the challenges of global economic uncertainty with a plan that is real."Jim Flaherty, Budget Speech 2008 On February 26, 2008, Minister of Finance, Jim Flaherty presented the third budget of the current Conservative government. The...

Moving Into the Fast Lane?
March 3, 2008... Things are changing fast in the London insurance market ("the London market") from a practice and regulatory perspective, with the introduction of the Financial Services Authority ("FSA") Contract Certainty Code of Practice being a landmark...

Written Statement Of The Chamber Of Commerce And The U.S Chamber Institute For Legal Reform In Opposition To S.2041 The False Claims Act Corrections Act Of 2007- Part Two.
March 3, 2008... Part Two IV. The Committee Should Reject The Amendment Encouraging Federal Employees To Abuse Their Government Positions By Filing Qui Tam Suits A.Summary The Senate should not, under any circumstances, pass Section 3 of S. 2041, which...

Intellectual Property News.
March 3, 2008... Copyright Australia Microsoft wins software infringement dispute in Federal Magistrates Court The Federal Magistrates Court has found in favour of software publisher Microsoft Corporation ('Microsoft') in a copyright dispute...

Directors And The Environment: Toward Accrued Liability?
March 3, 2008... Edited by Julie-Martine Loranger The environment has a more and more prominent position in the news and political sphere. Therefore it should not be surprising to see, over the next few years, an increase in sanctions relating to...

China Clean Tech Bulletin - February 2008.
March 3, 2008... Welcome to MoFo's inaugural China Clean Tech Bulletin. We have been assisting clients with Clean Tech matters in China for some time, and are pleased to provide this survey as a regular update to cover developments in this rapidly evolving...

Countdown To The Elimination Of U.S. GAAP Reconciliation Requirements For Foreign Private Issuers.(generally accepted accounting principles)
March 3, 2008... On March 4, 2008, the United States Securities and Exchange Commission's (the "SEC") amendments to current rules and forms that will allow foreign private issuers to file their financial statements without reconciliation to U.S. generally...

The Turkish Update - November 2007.
March 3, 2008... This is the November 2007 Edition of our email news service - Turkish Update - which is issued every two months. Our aim is to provide a concise and easy to read summary of developments in Turkey which may be of interest to our clients. This...

The Turkish Update - January 2008.
March 3, 2008... This is the January 2008 Edition of our email news service – Turkish Update – which is issued every two months. Our aim is to provide a concise and easy-to-read summary of developments in Turkey which may be of interest to our...

Empathy Imperative Of Transfer-Pricing Norms.
March 4, 2008... Legislation should be amended, if necessary, to ensure MNEs do not face undue hardship. Making It Easier An advance pricing arrangement can benefit MNEs, who are already faced with a host of tax litigations. More safe harbour...

International Investment Gateways To India.
March 4, 2008... This article was published in slightly different form in the November 2007 issue of theIndia Business Law Journal. Choosing the best offshore center for India-bound investment requires careful consideration of the risks and financial...

Supreme Court Holds That ERISA Authorizes Individual Suits For Lost-Profits Damages In Defined Contribution Plan Caused By Breach Of Fiduciary Duty.(Employee Retirement Income Security Act )
March 4, 2008... On February 20, 2008, the United States Supreme Court held in LaRue v. DeWolff, Boberg & Associates, Inc. that an individual participant in a 401(k) plan may sue under the Employee Retirement Income Security Act of 1974, as amended ("ERISA")...

To Cooperate Or Not: The Corporate Leniency Program After "Stolt-Nielsen".
March 4, 2008... Excerpt of article which first appeared in The Antitrust Source, February, 2008. (www.abanet.org/antitrust/at-source/at-source.html) Since 1993, the U.S. Department of Justice Antitrust Division's Corporate Leniency Program has been...

The CFI Decision In Microsoft: Why The European Commission's Guidelines On Abuse Of Dominance Are Necessary And Possible.(Brief article)
March 4, 2008... Global Competition Policy (GCP), January 2008, Release no. 2. GCP is a bi-weekly online magazine covering competition law, economics, and policy on the web at http://www.globalcompetitionpolicy.org/. Article Abstract The Court of First...

The Microsoft Judgment: Article 82 Revisited?
March 4, 2008... Global Competition Policy (GCP), January 2008, Release no. 2. GCP is a bi-weekly online magazine covering competition law, economics, and policy on the web at http://www.globalcompetitionpolicy.org/. Article Abstract The judgment of...

Corporate And Financial Digest - February 29, 2008.
March 4, 2008... SEC/CORPORATE Robert L. Kohl,Mark A. Conley and Palash I. Pandya NASDAQ Proposes Listing Standards for Special Purchase Acquisition Vehicles (SPACs) On February 21, the Nasdaq Stock Market, Inc. proposed a rule change to the Securities and...

New Material Contract Filing Requirements In Force March 17, 2008 And Impact On Existing Material Contracts.
March 4, 2008... National Instrument 51-102 Continuous Disclosure Obligations (the Disclosure Instrument) is scheduled to be amended on March 17, 2008 as a consequence of the coming into force of the proposed national prospectus rule, National Instrument 41-101...

Intellectual Property Rights In Developing Nations.
March 4, 2008... Sourav Chatterjee, Jesse David, Fei Deng, Christian Dippon and Mario Lopez I. Introduction Intellectual property rights (IPR) are legal entitlements granted by governments within their respective sovereignties that provide patent,...

SEC Proposes Amendments To Foreign Private Issuer Reporting.
March 4, 2008... On February 13, 2008, the Securities and Exchange Commission proposed to amend foreign issuer reporting requirements on Form 20-F under the Securities Exchange Act of 1934. The SEC also proposed to amend the exemption for foreign issuers under...

Public Finance Alert: IRS Publishes Notice 2008-27 To Facilitate Certain Restructurings Of Tax Exempt Bonds.
March 4, 2008... On February 19, 2008, the Treasury and IRS published Notice 2008-27 (the "Notice") in response to requests for relief from "reissuance" treatment of restructurings of tax exempt obligations by issuers seeking to replace, wrap or remove damaged...

Loose Lips Sink Ships And Other Fraudulent Conveyance Lessons.
March 4, 2008... Two recent cases involving fraudulent conveyance actions brought under section 548 of the Bankruptcy Code demonstrate the importance of words spoken and written by the parties contemporaneously with the transaction. Both cases serve as...

LaRue: Supreme Court Expands Rights Of Individual 401(k) Plan Participants To Recover For Losses Caused By Fiduciary Breaches.
March 4, 2008... By Dale Barnes, Todd Gordinier and Michael Mortenson On February 20, 2008, the United States Supreme Court ruled in LaRue v. DeWolff, Boberg & Associates, Inc., et. al. that s. 502(a)(2) of the Employee Retirement Income Security Act of...

IRS Releases Expanded Governance Guidelines For Exempt Organizations.
March 4, 2008... It may be useful for boards and their counsel to compare the guidelines against their existing governance policies and procedures. The Internal Revenue Service (IRS) recently released an expanded set of governance guidelines for tax-exempt...

Private Equity In India: The Risk, Structure And Reward.
March 4, 2008... With India's economy showing real GDP growth of 8.7% annually since 2003, international investments into India have increased significantly. Even as market conditions have limited private equity transactions in the United States and, to a...

Federal Court Sets Aside Competition Bureau Subpoenas.
March 4, 2008... In a pair of unprecedented rulings issued on January 28, 2008, Justice Anne Mactavish of the Federal Court of Canada quashed certain production orders she had previously issued against Labatt Brewing Company Limited and others in the context of...

London Tax Update: Cross Border Relief For Utilisable Losses.
March 4, 2008... C- 414/06 Lidl Belgium (Advocate General - 14 Feb 08): Cross Border Relief For Utilisable Losses A Germany company sought to repatriate the losses of its Luxembourg branch in circumstances where the double tax convention exempted from tax...

The Law Of Passing Off Strengthened Further.(Microlube India Ltd. v. Maggon Auto Centre)
March 4, 2008... In an action for Passing Off under the law of trademarks, it is essential to prove that the consumer is misled into believing that the impugned goods are the goods of or are connected with the goods of a prior user of the trademark. When this...

Recent U.S. Labor And Employment Decisions.
March 4, 2008... Courts have recently rendered important decisions concerning the viability of the at-will employment doctrine and the jurisdictional scope of the whistleblower protections enacted under the Sarbanes-Oxley Act of 2002. We discuss, below, two...

Corporate Governance: Where Things Stand For 2008.
March 4, 2008... This bulletin summarizes notable developments in corporate governance as we head into the 2008 annual meeting and reporting season. Executive Compensation The CSA (Canadian Securities Administrators) has delayed implementation of new...

Court Reminds Employers To Follow "Lock In" Letters For Employees' Income Tax Withholdings.
March 4, 2008... A United States district court in Pennsylvania recently held that employers are obligated to follow an IRS "lock in" letter, and, as a result, cannot be held responsible by the employee for following the IRS's instructions.1 This case serves as...

OIG Opinion Sheds Light On Patient Discounts.(Office of the Inspector General)
March 5, 2008... A recent advisory opinion (No. 08-03) issued by the Office of the Inspector General of the Department of Health and Human Services (OIG) concluded that the OIG would not impose sanctions on a provider health system's program offering prompt...

Buying A "Serviced Plot" - Some Points To Watch.
March 5, 2008... Frequently a developer will purchase land to carry out development on the basis that the land either is or will be serviced by the vendor. Here are some basic points to watch out for if you are that purchaser or are acting for him: What Is...

SEC Votes to Propose Exemptive Rules Relating to ETFs and to Amend Privacy Rules.
March 5, 2008... Developments of Note SEC Votes to Propose Exemptive Rules Relating to ETFs and to Amend Privacy Rules SEC Issues Exemptive Orders to Permit Actively Managed ETFs SEC Announces 2008 CCOutreach Regional Seminars for Adviser and Fund...

Water Competition: Back on the Agenda.
March 5, 2008... After two failed initiatives to introduce effective retail market opening into the water and sewerage sector, the Government has now announced a further review of the practicalities of allowing third parties to compete with water undertakers...

Guernsey Moves Into Top 20 Of Global Financial Centres.
March 5, 2008... Guernsey has been ranked 19th in the latest Global Financial Centres Index (GFCI). It is produced by the Z/Yen Group for the City of London and ranks financial centres based on external benchmarking data and current perceptions of...

Managing Committee Of Co-operative Housing Society Must Execute Bond.
March 5, 2008... The legislature having experienced and realised that the members of the Managing Committee of different co-operative societies were acting in an arbitrary manner, with a view to have some accountability amongst the members of the Managing...

Federal Circuit Vacates Permanent Injunction In Favor Of Court-Imposed Running Royalty.(Abbott Laboratories (Abbott Park, Illinois))
March 5, 2008... The U.S. Court of Appeals for the Federal Circuit recently addressed a multitude of issues and vacated an injunction against Abbott Laboratories while upholding in part a ruling that Abbott infringed an Innogenetics patent for detecting and...

Absent Full Scope Of Enablement, Broad Claims Fail.
March 5, 2008... Following two recent cases applying the doctrine requiring that broad claims be fully enabled by the specification, the U.S. Court of Appeals for the Federal Circuit again applied the doctrine, invalidating patent claims that had been broadly...

And So It Starts ... Federal Circuit Orders En Banc Review Of Bilski.
March 5, 2008... In a 9-3 decision, the U.S. Court of Appeals for the Federal Circuit denied a petition to review its decision, handed down in In re Nuijten (IP Update, Vol. 10, No. 10), the dissenting judges noting that the law surrounding s. 101 is in a...

Canadian Securities Regulators Release Second Version Of Comprehensive Registration Regime For Comment.
March 5, 2008... Keeping Reforms in Sight: Understanding VERSION 2 of the Registration Reform Proposals On February 29, 2008, the Canadian securities administrators (CSA) released for a second comment period proposed National Instrument 31-103 Registration...

Going Outside The Sentencing Guidelines: Fallout From Gall And Kimbrough - An Update On Federal Sentencing Practice And Procedure.
March 5, 2008... In two key decisions issued in December 2007, the United States Supreme Court has picked up where it left off following last term's ruling in Rita v. United States, 127 S. Ct. 2456 (2007), and has provided further-and much-needed-guidance to...

Penalties For Hiring Undocumented Workers to Increase in March.
March 5, 2008... Effective March 27, 2008, penalties for knowingly hiring illegal workers will increase significantly, as part of a larger federal crackdown against illegal immigration that includes tightened border security, an increase in the number of...

DePeiza: SJC Affirms Terry Stop Based On Police Training And Experience.
March 5, 2008... Many criminal prosecutions arise from evidence recovered by police during unplanned street encounters with citizens. Such "threshold inquiries" or Terry stops are standard investigative techniques employed by law enforcement after the Supreme...

Human Capital (Employment) - Appealing Times, February 2008.
March 5, 2008... Despite being only two months into 2008, the appeal courts in both the UK and Europe have handed down a number of decisions and opinions that may have a significant impact on employers. These decisions and opinions deal with questions relating...

Employment Law Commentary - February 2008.
March 5, 2008... Employer Obligations Under The FMLA Have Recently Been Expanded To Include Military-Related Leaves By Erika Drous Employer obligations under the Family Medical Leave Act ("FMLA") have recently been expanded for the first time since...

Mining Buried Electronic Data: Increasing Criminal And Civil Case Concerns.
March 5, 2008... With the rapid progression of computer technology, the production of documents in response to a government subpoena or civil discovery request has unearthed new and unexplored issues. Increasingly, prosecutors and regulators are requiring, and...

Dismissal Of Worker During IVF Treatment Can Be Sexual Discrimination.
March 5, 2008... The ECJ last week handed down its much-anticipated judgment in Mayr v Backerei und Konditorei Gerhard Flockner OHG on the dismissal of a female employee undergoing advanced in vitro fertilisation ("IVF") treatment. The decision clarifies when...

Communication Law Bulletin, February 2008 - Part 1.
March 5, 2008... The Month in Brief February saw developments on a number of fronts that could fundamentally alter the regulatory landscape. Notably, net neutrality - the idea that broadband service providers should be required to make their networks and...

Pensions News - Consultation On New Guidance.
March 5, 2008... The Pensions Regulator ("the Regulator") has recently commenced consultation on new guidance in relation to: conflicts of interest; and choosing assumptions, especially mortality assumptions. 'Conflicts of interest' consultation The Regulator...

Communication Law Bulletin, February 2008 - Part 2.
March 5, 2008... Wireless Developments 700 MHz Auction Nears Conclusion Bidding in Auction No. 73, which began on January 24 and has gone through more than 100 rounds, is winding down with minimal activity now in each round. Provisionally winning bids...

New Canadian Take-Over Bid Rules Effective On February 1, 2008.
March 5, 2008... Originally published February 2007 Editor's NoteIn this issue of The Material Change Report, Paul Simon of our Toronto office reports on the new regime for take-over bids in Canada. On February 1, 2008, new rules governing take-over...

LGPS Governance - A Step Closer To The Private Sector?
March 5, 2008... Originally published in Insight - Human Capital (Pensions), Spring 2008 The implementation of the new look Local Government Pension Scheme ("LGPS") in England and Wales took another step towards becoming a reality via the LGPS (Amendment)...

Wanted: Cartel Information, Fair Price Paid.
March 5, 2008... The Office of Fair Trading ("OFT") today announced that it is prepared to offer informants a reward of up to [pounds sterling]100,000 for information which assists in the detection and investigation of cartels. The scheme is designed to...

Local Government Pension Scheme (Management And Investment Of Funds) Regulations 1998: Time For Change?
March 5, 2008... Cynics in the legal profession are always keen to embrace legal uncertainty - they argue it keeps them in business. In the end of course, no one wins from uncertain, or still less, bad law. The Local Government Pension Scheme (Investment and...

Guernsey Delegation Welcomed Into China.
March 5, 2008... A delegation of senior government officials and business leaders from Guernsey has arrived in China at the start of a week-long visit to promote the Island's depth of professionalism and expertise in financial services. The delegation to...

Canadian Registrants May Face Filing Under National Instrument 24-101 by February 14, 2008.
March 5, 2008... Canadian registrants need to review their Canadian trades to confirm whether or not they are required to make a filing under new National Instrument 24-101, Institutional Trade Matching and Settlement (the Instrument) by February 14, 2008....

Federal Arbitration Act Trumps State Laws Lodging Primary Jurisdiction In State Administrative Forums.
March 5, 2008... Article by Douglas Wickham, Steven A. Groode and Robert P. Hennessy In Preston v. Ferrer, No. 06-1463 (Feb. 20, 2008) ("Preston"), the U.S. Supreme Court once again upheld the supremacy of the Federal Arbitration Act and confirmed that...

VAT Focus - A Round-Up Of Recent VAT-Related Developments.(Value-added tax)
March 5, 2008... Default surcharge - out of time? In a recent case decided at the VAT Tribunal, an appellant successfully appealed against a default surcharge. The appellant had submitted late VAT Returns for the 07/04, 10/04 and 01/05 VAT Return...

Intellectual Property - 2008 Winter Bulletin.
March 5, 2008... Contents California's Amended Right of Publicity Statute (California Civil Code § 3344.1) Ethical Limits on Investigations in IP Litigation Quick Updates California's Amended Right of Publicity Statute (California Civil...

Oversecured Creditor May Collect Pre-Payment Penalties From Solvent Debtor.
March 5, 2008... Determining a question of first impression within its circuit, the U.S. Court of Appeals for the First Circuit recently held that an oversecured creditor is entitled to collect a bargained-for pre-payment penalty from a solvent debtor,...

Administrative Priority Granted To Secured Claim.
March 5, 2008... In an issue the court notes is one of first impression, a Bankruptcy Appellate Panel for the U.S. Court of Appeals for the Ninth Circuit has held that a bankruptcy court could grant an administrative priority to a claim which also may be...

Financial Services And Markets Group Bulletin - Volatility Dampens Outlook.
March 5, 2008... According to our annual Financial Services Survey, City firms are uncertain about the future for the first time in five years. They believe the tax system inhibits business, and they are struggling to keep up with regulatory change. MARKET...

Changes To UK Immigration Law - February 2008.
March 6, 2008... The UK government has announced an overhaul of the whole UK immigration system, beginning with changes to measures to prevent illegal working and amendments to the Highly Skilled Migrants' Programme with effect from 29th February 2008. All...

How to Tell When Channel Conflict is Destructive.(manufacturers has to deal with channel conflict in direct marketing techniques)
March 6, 2008... Channel Conflict in Brief Multiple channel strategies are a way of life for manufacturers today. Whether you are managing a mix of direct and indirect channels or a spectrum of high-support to lowsupport resellers, the reality is that...

Market Volatility, Tax And Regulation.
March 6, 2008... Our 2007 annual survey reports on the views of the City's FSA-regulated businesses. Our tenth annual survey of FSA-regulated businesses in the City of London took place in November and December 2007. We surveyed 71 senior individuals from...

Encouraging Market Discipline Pillar 3.(market discpline and capital expenditure disclosure)
March 6, 2008... Pillar 3, which requires firms to provide key data on risks, capital and related management procedures, came into effect on 1 January 2008. In accordance with Pillar 3, financial institutions within the scope of Basel II are required to...

Pre-Budget Report On CGT.(Capital gains tax)
March 6, 2008... The new CGT flat rate will affect investors in varying ways, but small businesses are likely to be the biggest losers this time round. The Government has now published draft legislation which confirms that from 6 April 2008, a flat rate of...

Health Care Institutions Headed For And In Chapter 11.
March 6, 2008... Editor's Note: Success in the restructuring and insolvency arena requires more than an understanding of the law-it requires the ability to address issues specific to a debtor's industry and business. Below, two Reed Smith partners with...

The Use Of Statutory Demands - A Reminder.(Moorside Investments Ltd v DAG Construction Ltd)(Case overview)
March 6, 2008... The case of Moorside Investments Ltd v DAG Construction Ltd [2007] EWHC 7795/07, which came before HHJ Wilson, serves as a useful reminder as to when statutory demands can be used to recover outstanding debt. Facts This was an...

Third Circuit Settles Right To Cure Split In New Jersey.
March 6, 2008... For more than 10 years, the courts in New Jersey were split as to whether, under the Bankruptcy Code, a chapter 13 debtor's right to cure a default on a mortgage loan secured by the debtor's primary residence expired at the foreclosure sale, or...

The Importance Of Clarifying The Dispute Resolution Provisions Of A Contract In Advance.(Heifer International Inc v Helge Christiansen)
March 6, 2008... The recent case of Heifer International Inc v (1) Helge Christiansen (2) Christiansen Arkitekter KS MAA PAR (3) Haslev-Hansson VVS (4) Stevns El-Service A/S (5) Listed El-Teknik APS [2007] EWHC 3015 (TCC) which came before HHJ Toulmin CMG QC...

Plan Rejection Upheld Because Of Vote 'Gerrymandering'.
March 6, 2008... The U.S. Court of Appeals for the Third Circuit has ruled that a debtor may not reduce the number of votes required to confirm a chapter 11 plan of reorganization by purchasing certain claims. Such vote "gerrymandering" resulted in an...

Supreme Court Rules That Admissibility Of "Me Too" Evidence Is Case-By-Case Determination.(Sprint v. Mendelsohn)
March 6, 2008... A recurring issue in employment discrimination cases is whether a plaintiff should be allowed to bolster his/her bias claim by using evidence of alleged discrimination against other employees; especially when different supervisors are involved...

Relief For Venture Issuers And Further Update On CFO And CEO Certifications.
March 6, 2008... Venture issuers get some early relief as Canadian Securities Administrators (CSA) work towards a final proposal to incorporate certifications as to effectiveness of internal controls. Multilateral Instrument 52-109 Certification of...

Telstra Fails In Its Constitutional Challenge To Compulsory Access Laws.(Telstra Corporation Ltd.)
March 6, 2008... Originally published 6th March, 2008 Overview The High Court today handed down its much anticipated judgment on Telstra's constitutional challenge to parts of the telecommunication specific access regime in the Trade Practices Act 1974...