Mondaq Business Briefing articles from May 2009

Mondaq Business Briefing archives from May 2009

2009 Updates To Delaware General Corporation Law - Part 2: Elimination Of "Empty Voting".
May 1, 2009... By an amendment effective August 1, 2009 to section 213(a) of its General Corporation Law, Delaware has provided a way for corporate boards to avoid a problem sometimes referred to as "empty voting." The purpose of the change is to better align...

Federal Court Of Appeal Decision Clarifies Effects Of Partial Waiver Of Privilege.(Case overview)
May 4, 2009... On January 30, 2009, the Federal Court of Appeal (FCA) clarified the circumstances under which a partial waiver of privileged material can result in an implied complete waiver of privilege. The FCA's decision in Merck & Co. Inc. et al. v....

PRC Uses Anti-Monopoly Law to Place Conditions on Mitsubishi Rayon's Acquisition of Lucite.
May 5, 2009... Originally published 27 April 2009 Keywords: PRC, China's Ministry of Commerce, Anti-Monopoly Law, AML, Mitsubishi Rayon, Acquisition, Lucite International Group, MOFCOM, takeover, capacity expansion, Huiyuan Juice Group, Charterhouse...

New Regulations Exempting Certain Infrastructure Projects From Federal Environmental Assessments Already Being Challenged.
May 6, 2009... Copyright 2009, Blake, Cassels & Graydon LLP Originally published in Blakes Bulletin on Environmental Law, May 2009 Introduction In the January 2009 federal budget, the Conservatives promised billions of dollars in new spending to...

10 Pharma Companies Added To Monopoly Register.
May 7, 2009... Ten international pharmaceutical manufacturers have been included in the register for companies with a dominant position in or control over at least 35% of a particular market. The ten companies are the Russian branches of IHCC, Johnson&...

Delaware Supreme Court Overturns Ryan v. Lyondell And Provides Some Comfort To Boards Of Directors.(Case overview)
May 7, 2009... Copyright 2009, Blake, Cassels & Graydon LLP Originally published in Blakes Bulletin on Mergers & Acquisitions, May 2009 In July 2008, the Delaware Court of Chancery dismissed a summary judgment motion by the directors of Lyondell...

Comparative Advertising And Look-Alikes - The Smell Of Success For Brand Owners?
May 8, 2009... Following our previous briefings on comparative advertising, the Advocate General (whose opinion is non-binding but intended as guidance for the European Court of Justice) has recently thrown a much needed lifeline to brand owners following his...

Appropriation Of Shares In BVI Companies Under English Law Share Mortgages.
May 11, 2009... On 5 May 2009 the Privy Council in London handed down its decision in Alfa Telecom Turkey Limited v Cukurova Finance International Limited [2009] UKPC 19, drawing a definitive end to the vexed preliminary issue under British Virgin Islands law....

Third Circuit Clarifies Applicability For PSLRA Safe Harbors And Standards For Alleging Scienter In Securities Fraud Cases.
May 11, 2009... Late last week, the U.S. Court of Appeals for the Third Circuit made a substantial contribution to the list of important securities fraud cases interpreting the Private Securities Litigation Reform Act ("PSLRA") with a 91-page opinion in...

Chrylser, GM, And Chapter 11.
May 12, 2009... How The Legal Proceeding WILL PROBABLY Work As anticipated by many, including this author, all the billions that the US government has poured into Chrysler has not been enough to get all the players in that game to agree to a plan of...

Critical Early Decision-Making When the Government Comes Knocking.
May 12, 2009... In the wake of the stock market implosion of 2008, public companies are being subjected to the highest level of scrutiny by government regulators and prosecutors in recent memory. Thanks to political grandstanding and the populist urge to...

DGCL Amendments Authorize Proxy Access And Expense Reimbursement Bylaws, Reverse Schoon v. Troy Corp.(Case overview)
May 12, 2009... Delaware has enacted important amendments to the Delaware General Corporation Law. The amendments, which will go into effect on August 1, 2009, include a number of changes responsive to significant recent case law developments in the Delaware...

Canadian Sanctions Legislation - How It Impacts Your Business.
May 12, 2009... Copyright 2009, Blake, Cassels & Graydon LLP Originally published in Blakes Bulletin on Financial Services/International Trade & Investment, May 2009 The recent publication of a list of individuals and entities designated under...

Copyright Societies And The Grant Of Rights For Radio Broadcast.
May 12, 2009... Acquisition of rights to broadcast musical works and associated literary works on radio is vital in view of copyright violation and the existence of copyright societies. An application was filed to seek an order of temporary injunction...

Telecommunications Alert: Ninth Circuit Decision May Provide Clarity On Legality Of Cable, Telecommunications, And Internet Service Early Termination Fees.
May 13, 2009... The Ninth Circuit U.S. Court of Appeals has agreed to consider the appeal of a federal district court decision on the legality of an early termination fee assessed on Internet service customers.1 The circuit court will review Federal District...

Bank Charges - The Debate Goes On.
May 14, 2009... In The Office of Fair Trading v Abbey National Plc and Others [2008] EWHC 875, the test case launched by the OFT into the legitimacy and fairness of bank charges, the High Court found that the charges do not represent unenforceable penalty...

Voluntary Amendments In Mexico.
May 15, 2009... In recent years, many questions have arisen concerning Voluntary Amendments. To commence, we could say that a Voluntary Amendment is an action where a modification is made to either the form or the substance of the description, claims or,...

Opinion Issued by the PRC Supreme People's Court Concerning the Adjudication of IP Subject Matters under the Current Economic Environment.
May 15, 2009... Originally published 13 May 2009 Keywords: Supreme People's Court, China, intellectual property cases, PRC, National IP Strategy, infringing mark, registered trademark, trademark protection Summary On 21 April 2009, the Supreme...

Just And Equitable Winding Up In Jersey- Who Will Take On The Role Of Liquidator?
May 15, 2009... Introduction With most economies on the edge of, or else in recession, the number of insolvency proceedings in a number of jurisdictions, will undoubtedly increase. Jersey will be no exception, not only with regard to local businesses...

Duties Of Directors Of Jersey Companies.
May 15, 2009... In the current economic environment, directors will be fully focussed on avoiding any breach of their fiduciary duties, particularly if they are directors of companies experiencing or at risk of financial distress. This client briefing...

Reverse Scheming May Not Be Noble.
May 15, 2009... Introduction The deal structuring phase of any transaction involves an assessment of the road blocks to implementation. In the past, reverse takeovers or schemes have been seen as a mechanism to overcome a road block, such as...

The Corporate Defendant: Managing The Threat Of Litigation.
May 19, 2009... Originally appeared in Commercial Litigation Review, Vol. 7, No. 2, May 2009. The Corporate Defendant In an article titled "The Corporate Plaintiff: Litigating for Profit?" recently published in the Commercial Litigation Review,1 this...

Determined To Make The Horse Drink.
May 19, 2009... Originally appeared in the International Bar Association's Mediation newsletter, vol. 5, no. 1, April 2009. At least one justice of the English Court of Queen's Bench seems determined to prove incorrect the old adage 'you can lead a horse...

OSC Raises Some Uncertainty On Prevailing Practice On Fairness Opinions And On Directors' Duties In Face Of Shareholder Complaints.
May 19, 2009... Copyright 2009, Blake, Cassels & Graydon LLP Originally published in Blakes Bulletin on Mergers & Acquisitions, May 2009 On April 28, 2009, the Ontario Securities Commission released its reasons for its January 23, 2009 decision on the...

Ontario Quickly Passes 'Green Energy Act' With Some Interesting Revisions.
May 19, 2009... Ontario's Green Energy and Green Economy Act, 2009 passed Third Reading on May 14th, just 80 days after it was first tabled in the Legislature. We expect the regulations, policies and Ministerial Directives, which are necessary to implement a...

Beware Of Counterfeit Certificates Of Title.
May 19, 2009... Counterfeits certificates of title In February 2009, Land & Property Information issued a circular advising of a mortgage fraud scheme currently operating in Victoria affecting New South Wales Land. The counterfeit certificates of...

Is A Scheme Of Arrangement The Right Choice For Me?
May 19, 2009... Schemes of arrangement are commonly used mechanisms under the Corporations Act 2001 to acquire listed companies or restructure corporate groups. There are two principal structures that can be used to acquire all the voting shares in a public...

Ten Ways To Avoid Destroying Value In Your Technology Company - Part III.
May 19, 2009... In the last two editions, we discussed a number of ways technology companies can diminish their value, including failing to secure all copyrights, failing to patent inventions, carelessly giving away access to source code, and hastily granting...

New Requirements And Increased Supervision Over Economic Stimulus And Bailout Funds May Increase Potential False Claims Act Liability For Recipients.
May 19, 2009... The public outrage over the spending of bailout funds, especially in light of bonuses paid to executives at bailout fund recipients, has prompted the government to take measures to ensure recipients spend the funds for their stated use. New...

Considerations For Repricing Options And Other Equity-Based Compensation.
May 19, 2009... Given the recent market environment, many public issuers are reviewing the status of their option plans and grants made under these and other equity-based compensation plans. In many cases, issuers have experienced a precipitous drop in their...

FTC Delays Enforcement Of Red Flags Rule.
May 19, 2009... The Federal Trade Commission (FTC) announced on April 30, 2009 that it would delay enforcement of the Red Flags Rule (Rule) until August 1, 2009, to give creditors and financial institutions more time to develop and implement written identity...

Energy Industry Updates For April 2009.
May 19, 2009... FERC and DOE Propose Policies to Promote the Development of Smart Grid Technologies Seeking to guide the development of a modern electric grid and to encourage utilities to invest in smart grid technology, the Federal Energy Regulatory...

Companies Act 2006 - Final Implementation Phase - 1st October 2009.
May 19, 2009... The final implementation phase of the Companies Act 2006 (the "Act") takes place on 1st October this year. The provisions being introduced in October make substantial changes to the presentation and contents of a company's Memorandum and...

The Use Of Mediation In Construction Projects.
May 19, 2009... As part of the review into civil litigation costs being carried out by Lord Justice Jackson, Nicholas Gould and Claire King lead a research project conducted by The Centre of Construction Law and Dispute Resolution, King's College London and...

Weekly Climate Change Policy Update - May 18, 2009.
May 19, 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 Chairmen Waxman and...

Supreme Court Endorses Apportionment Of Liability And Clarifies Arranger Liability For Useful Products Under CERCLA.
May 19, 2009... Article by Gregory A. Bibler , Laurence S. Kirsch , Christopher P. Davis and Kevin P. Pechulis The U.S. Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. United States ("Burlington Northern") represents a stark...

Fenwick Employment Brief.
May 19, 2009... PANDEMIC PREPAREDNESS – DEALING WITH THE SWINE FLU Although the swine flu outbreak appears to have peaked (for the time being), employers should nevertheless remain vigilant and take the following proactive steps to deal with a...

The Transfer Of Intellectual Property Rights: Can There Be Too Much Freedom In The Marketplace For Ideas?
May 19, 2009... We Americans take for granted the fact that intellectual property rights can be transferred from one person to another. A small "garage" inventor can sell patent rights to a manufacturing company. Two sparring competitors can settle their...

Top Ten Patent Issues For The New Director Of The Patent And Trademark Office.
May 19, 2009... Imminently, the Obama Administration will be naming a new Director of the U.S. Patent and Trademark Office ("PTO"). The PTO, which used to be a quiet backwater of a niche area of law, has recently found itself front and center in some high...

Changes To Acquisition Of Land Act.
May 19, 2009... Significant changes to the Acquisition of Land Act 1967 commenced in February 2009. Some important changes include the following. A claim for compensation may now only be served on the resuming authority within three years after the day the...

Crisis Revamps Patterns Of Bank And S&L Holding Company Approvals.
May 19, 2009... In 2008, the financial institutions industry experienced the most disruptive, exciting and precedential year in the history of the formation and operation of bank holding companies and savings and loan holding companies. The transactions in...

SEC Staff Publishes Updated Interpretive Guidance On Rule 10b5-1 Trading Plans.
May 19, 2009... The Securities and Exchange Commission's Division of Corporation Finance has updated its Compliance and Disclosure Interpretations relating to Rule 10b5-1 under the Securities Exchange Act of 1934. Rule 10b5-1 provides an affirmative defense...

FAR Rules for Stimulus Funded Contracts: Alert 4 - GAO and Inspector General Oversight.
May 19, 2009... Our earlier Alerts noted the recent issuance of five FAR Counsel Interim Rules. In our May 5, 2009 Alert, we discussed in greater detail the rule that involved incorporation of existing and modified requirements of adherence to Buy American...

Disease Outbreaks Revealed By Analysis Of Aggregate Internet Searches.
May 19, 2009... Reprinted with permission from FindLaw.com Last week I told you about how the Internet can provide valuable information to help people learn about and deal with disease outbreaks like the recent swine flu. I am here to tell you now that the...

"Can You Hear Me Now? Si?": Is There A U.S.-Cuba Telecommunications Revolution On The Horizon?
May 19, 2009... After 47 years of a stalemate in United States-Cuba relations as a result of the Castro regime and the trade embargo, the state of communications between Americans and the 12 million inhabitants of Cuba may be changing. Many have criticized...

Sensible Steps: Preparing The Workplace For Swine Flu And Other Communicable Illnesses.
May 19, 2009... Ann Marie Hensler is based in our Tampa office The U.S. government recently declared a public health emergency concerning the outbreak of the H1N1 virus, commonly known as the "swine flu." It is important that employers are prepared to...

Cains Sponsors Cambodian School's Football Team.
May 19, 2009... Cains are sponsoring a school football team in the Cambodian capital of Phnom Penh. Aziza Schoolhouse serves a slum community and provides a range of lessons and activities to over 100 children. The children who attend the school come from one...

ITC Model Contracts Help Small Firms Clinch Trade Deals.
May 19, 2009... Business lawyers and experts from around the world (including a representative from Cains) met in Geneva at the International Trade Centre (ITC) on 21-22 April 2009 to review and finalize model contracts that can be used free of charge by small...

Supreme Court Docket Report - May 18, 2009.
May 19, 2009... Originally published May 18, 2009 Keywords: Supreme Court, AT&T, Hulteen, General Electric Co., Gilbert, disability-benefit plan, sex-based discrimination, Civil Rights Act, intentional discrimination, exclusion of pregnancy, excluded...

Dunsmuir Considered.
May 19, 2009... Article originally published in McCarthy Tetrault Litigation Co-counsel (Volume 2, Issue 3) on March 25, 2009 We commented on Dunsmuir v. New Brunswick, 2008 SCC9 (CanLII) in our June 2008 edition, predicting that as a result of the...

The Developing Landscape Of Arbitration - The Impact Of Dell And Rogers.
May 19, 2009... Article originally published in McCarthy Tetrault Litigation Co-counsel (Volume 2, Issue 3) on March 25, 2009 The legal landscape related to the enforcement of arbitration clauses continues to develop following the Supreme Court of...

An Appeal To Pragmatism.
May 19, 2009... Article originally published in McCarthy Tetrault Litigation Co-counsel (Volume 2, Issue 3) on March 25, 2009 After a class action is authorized, can the court hear and grant a motion for dismissal? Would this not be a disguised appeal?...

Rights Issues - Practical Considerations For New Zealand Listed Issuers.
May 19, 2009... This guide answers ten key questions commonly raised by listed companies who are seeking to raise capital from their existing shareholders. Due to the tightening of debt markets and increased costs of traditional bank facilities, more and...

HSR Primer.
May 19, 2009... Federal antitrust laws provide that large transactions involving the merger or acquisition of large companies with or by other large companies are subject to review by the U.S. Federal Trade Commission ("FTC") and the U.S. Justice Department...

Opening The Floodgates: New Generic Top Level Domains Rolling Out Soon.
May 19, 2009... In June 2008, the Internet Corporation for Assigned Names and Numbers ("ICANN") approved the recommendation for the introduction of an indefinite number of new generic top level domain names ("gTLDs") to the 21 existing gTLDs (such as .com,...

Linking To Defamatory Comments Does Not Constitute Publication.
May 19, 2009... Article originally published in McCarthy Tetrault Co-Counsel: Technology Law Quarterly on February 12, 2009 The B.C. Supreme Court recently ruled that merely hyperlinking to defamatory material, without repeating the comments itself, does...

Visa Sets Compliance Deadlines For Payment Card Industry Data Security Standard (PCI DSS).
May 19, 2009... Article originally published in McCarthy Tetrault Co-Counsel: Technology Law Quarterly on February 12, 2009 In the last issue of the TLQ, we commented on the absence of explicit statutory restrictions on credit card data that may be...

Facebook Wins $873 Million Award Against Canadian Spammer.
May 19, 2009... Article originally published in McCarthy Tetrault Co-Counsel: Technology Law Quarterly on February 12, 2009 Facebook, a popular social networking site, recently obtained a $873-million default judgment against a Canadian spammer from a US...

Revolution In Contract Law Covers Business Contracts As Well As Consumer Contracts.
May 19, 2009... The Federal Government's draft unfair contract terms law released yesterday for public comment will affect not only contracts entered into with consumers, but contracts between businesses, so many businesses across Australia will need to review...

The Effect Of The Launch Of COMESA's Regional Competition Commission In Africa And Beyond.
May 20, 2009... Recognising that anti-competitive behaviour is likely to prevent economic growth, efficiency and trade liberalisation in its member states, the Common Market for Eastern and Southern Africa recently launched a regional Competition Commission to...

An Employer's Duty To Accommodate Following A Work Accident.
May 20, 2009... Under the Act Respecting Industrial Accidents and Occupational Diseases1 (the "Act") the Occupational Health and Safety Commission ("CSST") has broad powers in all matters relating to work accidents and their aftermath. In the recent decision...

Family Day In Ontario - An Update.
May 20, 2009... We have now had two Family Day holidays since the Ontario Government's creation of the ninth paid public holiday under the Employment Standards Act, 2000 ("ESA"). Since then, there have been several arbitration awards regarding whether...

Visa/IRIS Changes Impacting South Africa, Lesotho, Swaziland, Bolivia, Venezuela Nationals.
May 20, 2009... Visas required for all nationals of South Africa, Lesotho and Swaziland from 1 July and IRIS suspended from 17 May/ 1 July for nationals of Bolivia, Venezuela, South Africa, Lesotho and Swaziland In February (please see our previous...

ASA Adjudications Snapshot - April 2009.
May 20, 2009... This article provides a selection of the most interesting ASA adjudications from April and a summary of the key issues considered in the adjudications. In a busy month, the ASA ruled on complaints concerning green claims for cars, a fair...

Equality Bill: Implications For Insurers.
May 20, 2009... The ability of insurers to take into account factors such as age, sex and disability when assessing and rating insurance risks will be restricted under proposals contained in the recently published Equality Bill. The Bill has been put...

Obama Administration Withdraws Bush-Era Monopolization Guidelines and Signals Shift Toward More Robust Antitrust Enforcement Policy.
May 20, 2009... Originally published May 11, 2009 The Obama Administration today signaled a more aggressive antitrust enforcement policy and a clear shift away from the Bush Administration's more laissez-faire approach. It also drew from lessons of U.S....

Corporate Manslaughter: First Ever Prosecution Under New Law.
May 20, 2009... The Crown Prosecution Service is bringing its first ever prosecution against a company under the Corporate Manslaughter and Corporate Homicide Act 2007, which entered into force last year, following the death of an employee in an accident. One...

Superannuation.
May 20, 2009... As expected, the Federal Budget contained significant changes with all things to do with superannuation. Reduction In Contributions Cap The Government has announced that it will reduce the cap on concessional superannuation contributions...

2009/10 Federal Budget.
May 20, 2009... The much anticipated 2009-2010 federal budget has introduced some significant changes that should have a mostly positive impact on the Property Industry. Treasurer Wayne Swan stated that the Government had a strong aim to provide a nation...

Maryland Makes Minimum Resale Price Maintenance Per Se Unlawful.
May 20, 2009... On April 14, 2009, Maryland amended its antitrust statute to make minimum resale price maintenance per se unlawful, thus expressly rejecting the U.S. Supreme Court's 2007 decision in Leegin Creative Prods, Inc. v. PSKS, Inc., 551 U.S. 877. In...

Trade Mark Owners' Delight At Luxury Lingerie Decision.
May 20, 2009... Review of the Judgment of the Court of Justice in Case C-59/08 Copad SA -v- Christian Dior Couture SA, Societe Industrielle Lingerie (SIL) In a landmark ruling, the European Court of Justice (the ECJ) has confirmed that a trade mark owner...

More Aggressive Enforcement Policy Announced By New Antitrust Chief Ignores Recent Supreme Court Decisions Regarding Section 2, 'Trinko' And 'Linkline'.
May 20, 2009... Less than a month after becoming the new Department of Justice ("DOJ") Antitrust Chief, Christine Varney has taken a giant step toward fulfilling her goal of "vigorously enforc[ing] the law"1 by announcing that the DOJ is withdrawing its...

China Issues New Corporate Restructuring Tax Rules.
May 20, 2009... Article by David Olsson and Richard Feller China has released new rules on the tax treatment of various types of corporate reorganisations, including equity and asset acquisitions, mergers, debt restructurings and enterprise spin-offs....

2009 Updates To Delaware General Corporation Law - Part 3: Improved Shareholder Access To Proxy Materials - Now, What Will The SEC Do?
May 20, 2009... Delaware has added two new sections to the General Corporation Law, effective August 1, 2009. While the legislature appears to be concerned about improving shareholder access to proxy materials, the effect of these changes may not be clear for...

Supreme Court Decision Gives New Hope To Defendants In Superfund Cases.
May 20, 2009... Monday's Supreme Court's decision in Burlington Northern v. United States (.pdf) will significantly affect the outcome of many pending and future Superfund disputes. The opinion's two principal holdings narrow the scope and extent of many...

CMS Issues Hospital Payment Proposed Rule For 2010 - Affecting 3,500 Acute Care Hospitals.
May 20, 2009... On May 1, 2009 the Centers for Medicare & Medicaid Services (CMS, or the Agency) issued a proposed rule (.pdf) for the FY2010 Medicare hospital inpatient prospective payment systems (IPPS). The regulation proposes revisions to policies and...

Pandora: The Music Genome Project Coming To You!
May 20, 2009... Reprinted with permission from FindLaw.com Fasten your seatbelts - if you love music, you absolutely must get hip to the Music Genome Project brought to you at Pandora.com. This is the next big thing in music. As pointed out on the web...

New Antitrust Chief Outlines Enforcement Philosophy.
May 20, 2009... Elections have consequences, and one of the results of our most recent Presidential election is going to be a more aggressive antitrust enforcement policy. Yesterday the new Assistant Attorney General for Antitrust, Christine Varney, gave her...

China Issues New Tax Rules On Enterprise Reorganizations.
May 20, 2009... On April 30, 2009, the Ministry of Finance and the State Administration of Taxation jointly issued the Notice on Certain Issues of Corporate Income Tax Treatment of Enterprise Reorganizations (the "Notice"), Caishui (2009) No. 59. The Notice...

A Guide To French Anti-Counterfeiting Law.
May 20, 2009... Legal framework French regulations IP regulation is codified within the French IP Code. The code was amended by the Law of October 29 2007 against Infringement (1544/2007), which implemented the EU IP Rights Enforcement Directive...

Private Placement Of Shares In A Jersey Company.
May 20, 2009... Why private placement and why Jersey? As a result of the shortage of liquidity in the bank lending markets, many businesses have a need for additional funding. One source of funds might be a private placement of shares. This has often been...

Ontario's Green Energy Act Passed.
May 20, 2009... On May 14, 2009, the Green Energy Act, 2009 was passed. It is intended to encourage the development of renewable energy in Ontario by streamlining the approvals process, enhancing connection and distribution and providing certainty in the...

Boom, Bust And DIP.
May 20, 2009... The extraordinary turmoil in the financial markets in recent times has caused many major economies, including the Canadian economy, to enter into a recessionary period. With the financial sector still trying to cope with the shocks of 2007 and...

SEC Votes To Propose Amendments To Adviser Custody Rule.
May 20, 2009... Developments Of Note SEC Votes To Propose Amendments To Adviser Custody Rule Treasury Proposes Framework For Regulating OTC Derivatives Fourth Circuit Reverses District Court Dismissal Of Class Action Securities Fraud Claims...