Mondaq Business Briefing articles from November 2004

Mondaq Business Briefing archives from November 2004

NLRB Decision In Brown University: Graduate Student Assistants Have No Right To Engage In Collective Bargaining.(National Labor Relations Board)
November 1, 2004... By S. Richard Pincus (Chicago) Originally published October 2004 In a decision involving an effort by the United Auto Workers to organize graduate students' assistants at Brown University, a majority of the members of the National...

UK Pensions Discrimination: The Discrimination Jigsaw - Putting The Pieces Together.
November 1, 2004... Originally published in Linklaters' Pensions Update on 6th October 2004 Legislation to tackle various forms of discrimination in the workplace seems to have come thick and fast over the past few years (and there is no sign of the flow...

Florida DEP Considers Controversial Notification Requirement.(Department of Environmental Protection)
November 1, 2004... author>By Lawrence E. Sellers (Tallahassee) Originally published 4th Quarter, 2004 The Florida Department of Environmental Protection (DEP) currently is considering a draft of a proposed rule that would require the person responsible...

SEC Proposes Securities Act Reform.(Securities and Exchange Commission)
November 1, 2004... Originally published October 28, 2004 On October 26, 2004, the Securities and Exchange Commission voted to propose modifications to the securities registration and offering processes under the Securities Act of 1933. The proposals will...

The Impact of the American Jobs Creation Act of 2004 on RICs and REITs.(regulated investment companies)(real estate investment trusts )
November 1, 2004... The Impact of the American Jobs Creation Act of 2004 on RICs and REITs On Friday, October 22, 2004, the President signed the American Jobs Creation Act of 2004 (the "Act") into law. The Act includes a number of provisions concerning...

Former U.S. Treasury Official Joins Latham & Watkins' Tax Team.
November 1, 2004... Julian Kim returns to Washington, DC office from the U.S. Treasury Department's Office of Tax Policy Washington, DC, October 29, 2004. Latham & Watkins LLP1 is pleased to announce the return of Julian Kim as partner in the firm. Kim, who...

CMS Allows Medicare Coverage Of Brain Scans For Elderly Patients That May Be Suffering From Either Alzheimer's Disease Or Fronto-Temporal Dementia.(Centers for Medicare and Medicaid Services)
November 1, 2004... Executive Summary Action: The Centers for Medicare and Medicaid Services recently determined that under certain circumstances, a brain scan will be covered by Medicare when used for the diagnosis and treatment of patients that may be...

On Risk e-Bulletin - October 2004.
November 1, 2004... Edited by Graeme Mew and Tanya Frizzell Contents Announcement Marche v. Halifax Insurance Co., [2003] N.S.J. No. 121 (NSCA) - Minor Injury Reforms (Alberta) - Insurer Liable for Aggravated and Punitive Damages in Impaired...

Ethics In International Proceedings.
November 1, 2004... Article by Sheila Block* Published in International Litigation News, October 2004 There is a psychological condition that sometimes overtakes travellers. They feel invincible in a foreign country, as though, being away from home, the...

At The Forefront Of Technology And Life Sciences Practice In Canada And Beyond.(Interview)
November 1, 2004... Published in The Metropolitan Corporate Councel, October 2004 Editor: Ms. Reicin, would you tell us something about your professional experience? Reicin: I have been practicing corporate and securities law for over 20 years. My...

Are We Becoming More American? Class Action Litigation - Australia v United States.
November 1, 2004... The Class Action Phenomenon Complicated law suits have been around forever, but they no longer involve two or three parties debating narrowly defined legal questions. Taking an international view, today the greatest litigation threats to...

Endangered Species Protection Escalates In British Columbia.
November 2, 2004... On June 1, 2004, the prohibitions in the federal Species at Risk Act (SARA) took effect, creating an added layer of protection for species at risk in Canada. Companies operating resource-based industries, such as forestry, mining, and oil and...

ITAR License Exemptions for UK and Australia Co-Opted by "Expedited" Licensing Process.(International Traffic in Arms Regulations)
November 2, 2004... by Lynn Van Buren and Linda Weinberg, with contributions by Robert S. Nichols and Steven Phillips During the past few years, the United States has been negotiating bilateral agreements with the United Kingdom and Australia that would...

EPA Now Accepting Proposals for Brownfields Grants.(Environmental protection agency)(Brief Article)
November 2, 2004... By Amy L. Edwards (Washington, D.C.) EPA expects to distribute $100 million in brownfields grants in FY 2005. Eligible organizations need to submit their applications no later than November 12, 2004. Three types of grants are...

Resource Kit for Complaint-Handlers.
November 2, 2004... The Financial Services OmbudsNetwork has added a Resource Kit to its Web site (www.cfson.ca), which lays out a selection of themes related to financial consumer complaint-handling, provides links to reference material, tip sheets and a sample...

Lenczner Slaght Commercial Litigation NetLetter -28 October 2004.
November 2, 2004... An application under the British Columbia Commercial Arbitration Act for a stay of an intended class proceeding in favour of arbitration must be heard at the same time as an application to certify the action as a class proceeding in light...

New California Laws Focus On Marketing Of Prescription Drugs And Use And Disclosure Of Medical Information.
November 2, 2004... Summary Action: In September 2004, California's Governor Arnold Schwarzenegger signed bills aimed at mandating compliance with existing voluntary rules on marketing of prescription drugs by pharmaceutical companies and strengthening...

Supreme Court Docket Report - October Term, 2004 - Number 2.
November 2, 2004... Originally published October 12, 2004 Recently the Supreme Court granted certiorari in four cases of interest to the business community, two of which have been consolidated. Amicus briefs in support of petitioners will be due on Friday,...

Monsanto Reaps Where Ralph Has Sown.(Monsanto Co.)
November 2, 2004... In a case that ultimately focused on damages, the U.S. Court of Appeals for the Federal Circuit determined the district court did not abuse its discretion, either in its choice of sanction or its denial of a post-judgment motion to limit the...

USPTO Must Make Findings to Support a Determination of Unpatentability.
November 2, 2004... In affirming in part and remanding in part a decision from the U.S. Patent and Trademark Office Board of Appeals and Interferences (Board) the U.S. Court of Appeals for the Federal Circuit held that the Board did not abuse its discretion in...

Circumvention Provision Of The Digital Millennium Copyright Act Is Not A New Property Right.
November 2, 2004... In a case of first impression, the U.S. Court of Appeals for the Federal Circuit affirmed a summary judgment finding no violation of the anti-circumvention and anti-trafficking provisions of the Digital Millennium Copyright Act (DMCA) by...

Tax On Pre Owned Assets.
November 2, 2004... A new income tax charge which may affect anyone enjoying a benefit from assets they have given away Under the Finance Act 2004 a new income tax charge ("the Tax") has been introduced which will apply wherever a person enjoys a benefit from...

Global Growth: Winning Economic Strategies.
November 2, 2004... The US Treasury's Under Secretary for International Affairs thinks it is important to celebrate important recent developments in the global economy. Likewise, he says it is necessary to learn from the winning economic strategies that brought...

Exploration And Production In Brazil: A Rewarding Business.
November 2, 2004... Article by Ivan Tauil and Roberta Caneca The Brazilian oil and gas monopoly started to became more flexible in 1995, after the enactment of Constitutional Amendment No. 09 by the National Congress. The amendment removed constitutional...

Accessibility on the World Wide Web.
November 2, 2004... Originally published 20th October 2004 Businesses are under a legal obligation to make their websites accessible to disabled users. Despite this, many disabled people continue to encounter difficulties accessing websites, and are unable to...

Economic Review -The impact of high oil prices on the UK economy - Fourth Quarter.
November 2, 2004... Foreword by John Connolly This Review comes to you at a time when a record high oil price is casting a shadow over world economic growth and is threatening a return to the inflationary era of the 1970s. However, Roger Bootle, our Economic...

Economic Review -The impact of high oil prices on the UK economy - Fourth Quarter (continued).
November 2, 2004... ANALYSIS: THE WORLD ECONOMY So far the 'soft-patch' that the US economy has fallen into in recent months has been concentrated mostly in the consumer sector. Unfortunately, the consumer slowdown shows few signs of abating yet. Households...

Foley & Lardner Attorney Creates Board Game "Patential[TM]".
November 2, 2004... Patent Attorney Richard Warburg's New Game Explores Pharmaceutical Development Industry SAN DIEGO - Foley & Lardner attorney Richard Warburg announced today the creation of the board game Patential[TM], which allows players to develop...

Legal Media Expert Guides.
November 2, 2004... In the recently published Expert Guide to Aviation Lawyers, Payson Coleman is named The Best of the Best in Aviation. Recommended along with Coleman are Pillsbury Winthrop attorneys William Bowers, Thad Dameris, John Gillick, Kenneth Quinn,...

Trade Mark Registration: A Guide for SMEs.(small and medium sized companies)
November 3, 2004... The Golden Rule The golden rule when selecting a name for your business or brands is that the name should not describe the goods and services to which it will be applied. This is especially true if you intend to register it as a trade...

SEC Extends Date for Bank Broker Compliance.(Securities and Exchange Commission)
November 3, 2004... The SEC extended, to March 31, 2005, the date for bank compliance with the broker registration requirements contained in the Gramm-Leach-Bliley Act. The SEC release said the date was extended to permit the agency to fully consider comments on...

Enjoy Zero Tariff For Goods To Mainland China Through Hong Kong Under CEPA.(Closer Economic Partnership Arrangement)
November 3, 2004... Pursuant to the Closer Economic Partnership Arrangement ("CEPA") signed between Mainland China and Hong Kong SAR on 29 June 2003, the Mainland have applied zero tariff on certain imported goods of Hong Kong origin commencing from 1 January...

Injunction Must Be Specific To Comply With Rule 65(D).(U.S. Court of Appeals for the Federal Circuit regulation)
November 3, 2004... The U.S. Court of Appeals for the Federal Circuit has now vacated and remanded an injunction that did not comply with the specificity requirements of Federal Rule of Civil Procedure (F.R.C.P.) 65(d), relating to the scope of an injunction. The...

Web Accessibility.(regulation )
November 3, 2004... Web accessibility is about making your website accessible to all Internet users (both disabled and non-disabled), regardless of what browsing technology they're using. In addition to complying with the law, an accessible website can reap huge...

The Latest on Managing e-Discovery in Litigation.(Zubulake v. UBS Warburg LLC, 2004 WL 1620866)
November 3, 2004... "What we have here is a failure to communicatea" On July 20, 2004, in her fifth written opinion in a "relatively routine employment discrimination dispute," Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of...

The New Turkish Lira.
November 3, 2004... The hyperinflation that started in 1970's has been affecting Turkish economic life and has caused the expression of economic values by billions, trillions or even in quadrillions. From 1981 new banknotes in larger denominations started to be...

Colours as Trade Marks.(Office for Harmonisation in the Internal Market)
November 3, 2004... Using colours to promote a company's products is not a new concept, and colour is often central to a product's branding. But to what extent can businesses protect the colours of their products through trade marks? On 21 October the...

New Tax Law Will Require Substantial Changes to Many Non-Qualified Deferred Compensation Arrangements.
November 3, 2004... Originally published October 19, 2004 By Marian Tse, Matt Giuliani, Dan Condon, Scott Webster and Kris Wardwell Employers must take immediate action to review closely - and in many cases revise substantially - their non-qualified...

SEC Offers Guidance on the "Unbundling Rule" in the Mergers & Acquisitions Context.(Securities and Exchange Commission)
November 3, 2004... By James A. Matarese and Joseph L. Johnson III (Suzanne E. Murray contributed to the preparation of this article) The SEC has offered new guidance regarding the application of Securities Exchange Act Rule 14a-4(a)(3), more commonly...

Don't Use Old Logistics Tools to Build an Advanced Supply Chain.
November 3, 2004... You may think you're using the right tool for the job when the tool is actually preventing you from doing the job right. Look at American car manufacturers - they used standard slotted screws in all their assembly lines until 1936, when Henry...

New Mediator Group Announced.(Sean McTernan sets up mediators group)
November 3, 2004... Sean McTernan, of mcternans, has set up a group for mediators working within the media, MEDia.dr . "Having published a number of articles supporting my view that ADR can save time and money in the industry I know best, I thought it would...

Sean Mc Ternan, Solicitor: Metamorphosis.(legal firms name change)
November 3, 2004... The rebranding of this niche practice as "mcternans" was announced today (29th October 2004). Specialising in media law and mediation, reasons given were an increase in workload (requiring more than the initial one man and his dog) and the...

Static Control Components Prevails In Copyright Case.
November 3, 2004... Static Control Components Prevails In Copyright Case Federal Appeals Court Decision on Behalf of McDermott Will & Emery Client, SCC, Provides Court Interpretation of Digital Millennium Copyright Act WASHINGTON, D.C. (November 2, 2004)...

Professional Corporate & Financial Services - Notes On Company Incorporation.
November 3, 2004... 1.1.Appointment Of Third Party Professional Directors And Trustee Shareholders Directors and Shareholders Fees: Provision of Professional Third Party Directors and Officers to comply with local laws Provision of two Trustee...

Media and Mediation: Putting Wheels on the Deals [Deal Mediation].
November 3, 2004... In previous articles placed on this web site, I have explored my interests, as a media lawyer, in the appropriate use of mediation in media disputes. In this article I seek to colour in another section of the media/mediation map by looking at...

Pharmacapsules - October 2004.
November 3, 2004... Edited by Adrienne Blanchard and Jennifer Wilkie Contents Draft Regulations On Bill C-9 Published Generic Can Come To Market Without Sending New Notice Of Allegation Generic Need Not Address Patents When Added To Register After...

Refusal To Supply As A Mechanism For Controlling Parallel Trade In Pharma Products: Advocate General's Opinion.
November 4, 2004... On 28 October 2004, Advocate General Jacobs handed down his opinion(1) on a preliminary reference from the Greek Competition Commission requesting a ruling on the question of whether (and in what circumstances) a dominant pharmaceutical company...

E-Gov Bulletin - October 2004.
November 4, 2004... Edited by Michael Power Contents Alberta: Review Confirms Effectiveness of Provincial Adoption Web Site Business Registry I: B.C. Opens One-Stop Site Business Registry II: Hawaii Opens One-Stop New Business Site Canada...

Plays Nicely With Others: A Major Life Activity Under The ADA?(Americans with Disabilities Act)
November 4, 2004... Do you have employees in your work force who just can't seem to get along with other workers? If so, you're not alone. And if such an employee has a psychiatric disorder of which you are aware and you discipline the employee, you may face a...

FLSA: New Overtime Regulations Affect "Utah" Paralegals.(Fair Labor Standards Act)
November 4, 2004... [2004] All rights reserved including the right of reproduction in whole or in part in any form. On Monday, August 23, 2004 the New Overtime Regulations became effective. For most paralegals this historic day passed with no noticeable...

Pillsbury Winthrop Houston Litigation Team Remains Undefeated With Latest Product Liability Win.
November 4, 2004... Houston Litigators Notch Fifth Consecutive Trial Victory HOUSTON - Pillsbury Winthrop LLP has successfully defended its client, a subsidiary of Livonia, MI-based TRW Automotive, in a multi-million dollar product liability trial. The...

ASIC Releases Guide To Section 912D Corporations Act.(Australian Securities and Investments Commission )
November 4, 2004... Section 912D of the Corporations Act 2001 is an important self reporting obligation that is imposed on all entities that hold an Australian Financial Services Licence (AFSL). ASIC has recently issued a document entitled 'Breach reporting by AFS...

CMS Open Door Forum on the Revised HCPCS Coding Process.(Centers for Medicare & Medicaid Services, Healthcare Common Procedure Coding System)
November 4, 2004... On October 27, 2004, the Centers for Medicare & Medicaid Services ("CMS") held an "open door forum" to review and obtain public input regarding the agency's plans to revise the Healthcare Common Procedure Coding System ("HCPCS") coding...

HHS OIG Work Plan for Fiscal Year 2005.(Department of Health and Human Services, Office of Inspector General)
November 4, 2004... I. INTRODUCTION The Office of Inspector General ("OIG") of the Department of Health and Human Services ("HHS") has released its Work Plan for Fiscal Year 2005 ("Work Plan"), which summarizes the major projects the OIG intends to pursue in...

Be Careful What You Wish For: CAT's Replica Football Kit Judgment Shows that Achieving the Right Price Can Be Costly.(Competition Appeal Tribunal)
November 5, 2004... The Competition Appeal Tribunal (CAT) gave its longest judgment to date at the beginning of October. The judgment concerned the OFT's Replica Kit decision of 2003. Following an investigation, the Office of Fair Trading (OFT) had found that that...

Corporate Digest Volume 1 - Number 2 October 18, 2004.
November 5, 2004... Edited by Rod Seyffert Important New Developments in Dealing with the Government of Canada Originally published in TAXATION LAW BULLETIN - September 2004, Issue No. 055 Big Fines for Internet Defamation Originally published in...

Increasing FDA Oversight Over Clinical Research.(U.S. Food and Drug Administration)
November 5, 2004... Over the last several months, the U.S. Food and Drug Administration (FDA) has taken additional steps to increase federal oversight over clinical research. Though not all of these measures are final, the regulatory effort to more closely monitor...

Time's Up For The Opt-Out?
November 5, 2004... Originally published October 2004 This month we will highlight new proposals from the European Commission which, if ratified, will restrict the use of the opt-out from the 48-hour maximum working week. In addition, we will also report on...

Drafting Enforceable Sales Commission Plans Under New York and California Law.
November 5, 2004... Employers often encounter problems in drafting enforceable compensation plans for their commissioned sales employees. Contract provisions that might make business sense can run afoul of state wage and hour laws - and to further complicate...

Proposed Changes to Ontario Labour Relations Act Receive First Reading.
November 5, 2004... Yesterday the current Ontario government introduced changes to the Labour Relations Act which strip away many of the measures implemented by its predecessor. According to Liberal Labour Minister Chris Bentley, the Labour Relations Statute Law...

Communications Law Bulletin- October 2004.
November 5, 2004... The Month in Brief October was an active month on a number of fronts, including broadcast, wireline and mobile telephone regulation. Notably, nearly all remaining obstacles to the Cingular/AWS wireless merger were cleared, the TV license...

Communications Law Bulletin- October 2004 (continued).
November 5, 2004... FCC Weighs Competing Approaches to Permanent Unbundling Rules as High Court Refuses to Hear Appeals of Decision Overturning Triennial Review Order Judicial Review: On October 12, the Supreme Court, without comment, denied requests by AT&T,...

Politics And The Pulpit.
November 5, 2004... This article was originally published in October 2004 Another election season is upon us and with it a flurry of information - and misinformation - about what churches and other religious organizations can and cannot do. Fortunately for...

Accessibility for Ontarians with Disabilities Act, 2004 in the Works.
November 5, 2004... On October 12, 2004, the Government of Ontario, through the Ministry of Citizenship and Immigration, introduced Bill 118 - the Accessibility for Ontarians with Disabilities Act, 2004. If passed, Bill 118 will undoubtedly render Ontario...

Franchising on Indian Reservations.
November 5, 2004... Franchisors looking to penetrate new or emerging markets should explore the possibility of franchising in Indian Country.1 In conjunction with America's largest corporations, Indian tribes are now aggressively engaged in real estate...

Is Criminal Enforcement Needed To Combat Alleged Corporate Conflicts Of Interest?
November 5, 2004... When Enron and other corporate giants collapsed, imperiling public confidence in corporate America, President Bush responded by forming the Corporate Fraud Task Force ("CFTF") in July 2001. In his speech introducing the task force, President...

Anti-Tax Shelter Provisions of American Jobs Creation Act of 2004 Expand Reporting Rules for Taxpayers and Advisors, Substantially Increase Penalties for Non-Compliance and Provide IRS with Additional Sanction Authority.
November 5, 2004... The American Jobs Creation Act of 2004 (the "Act") was signed into law by President Bush on October 22, 2004. Among many significant changes to the Internal Revenue Code (the "Code"), the Act adopts expanded anti-tax shelter reporting rules,...

Pre-Bid Deals In Schemes.
November 8, 2004... Recent schemes of arrangement, including the Telstra-KAZ and MYOB-Solution 6 transactions, have involved pre-bid deals between the acquirer and a major shareholder in the scheme company. The ability of bidders in takeovers to utilise pre-bid...

First PRC Government Investment Arm Wound Up By Hong Kong Court.
November 8, 2004... Background On 4 October 2004, the Hong Kong High Court made Winding-up Orders against Zhuhai Municipal Government's "window company" Zhu Kuan Group Company Limited ("ZK Group") and its Hong Kong subsidiary Zhu Kuan (Hong Kong) Company...

Second Passports and Offshore Residency programs:.
November 8, 2004... Investment Opportunities, Tax Benefits and Security in Traveling in Turbulent Times We can no longer travel freely throughout the world without thinking of our safety. As the world grows increasingly more conflicted, it becomes important...

Arbitration: Rapid, Inexpensive Resolution Of International Disputes.
November 8, 2004... It is important in any international project to ensure that the relevant contracts include provisions for the resolution of dispute. The fundamental choice is-litigation in court or arbitration? In the absence of any contrary agreement by the...

Coming To The Table: Arbitration And Civil Litigation In The People's Republic Of China The Legal System.
November 8, 2004... At the time the People's Republic of China ("PRC" or "China") unveiled its Open Door policy in 1978, it was operating under what has been described as a legal vacuum. Immense and rapid changes have occurred in almost every aspect of China...

New Law Implements SNF Cost Based Medi-Cal System, And Assesses Quality Assurance Fees.(Skilled Nursing Facility )
November 8, 2004... Summary Action: Governor Schwarzenegger has signed into law a bill that replaces the statewide Medi-Cal per diem reimbursement rate for skilled nursing facilities with a cost based system. The bill also assesses a quality assurance fee,...

American Jobs Creation Act of 2004 May Adversely Impact Your Nonqualified Deferred Compensation Plans.
November 8, 2004... By David G. O'Leary (Chicago) Originally published November 4, 2004 In response to actual and perceived abuses, Congress has enacted sweeping changes to deferred compensation plans. The American Jobs Creation Act of 2004 (the Act) adds...

Sweden Thrives As Neutral Arbitration Ground.
November 8, 2004... REPRINTED WITH PERMISSION FROM THE OCTOBER 18 EDITION OF THE NATIONAL LAW JOURNAL [c] Although international commercial arbitration has a long history in Sweden, it was not until the 1960s and 1970s that international arbitration on a...

Section 409A: Future Shock for Nonqualified d.
November 8, 2004... Future shock has come to the world of nonqualified deferred compensation. What had been walled off as a regulatory "no-fly" zone since 1978 has become a scene of upheaval worthy of an aircraft dogfight. With nearly sixty years of case law now...

Conflict Presenteeism: Are You Losing Out?
November 8, 2004... Billions of dollars in lost productivity is a result of a new phenomenon called presenteeism, according to a recent report in the Harvard Business Review. Is your company losing out too? Presenteeism refers the employees who go to work ill...

Eliminating Silos Improves Performance.
November 8, 2004... Have you heard the one about the four blind men and the elephant? It's an ancient parable that teaches savvy leaders how to eliminate the silo phenomenon found in most organizations. What's a silo? Originally, silos were huge...

Disclosure Obligations And The E-ternal Debate.
November 8, 2004... There comes a time in every piece of litigation that proceeds to trial, that the dreaded process of disclosure must be approached. In the past, this has always involved trawling the paper files for relevant documents. However, it is now...

Awards Based on Grounds not Submitted by the Parties.
November 8, 2004... Awards made in Switzerland may be challenged (directly before the Supreme Court) if the arbitrators have violated the parties' "right to be heard in adversary proceedings" (guaranteed by Articles 182(3) and 190(2)(d) of the Swiss Private...

EU Regulatory Watch.
November 8, 2004... The following are discussed within this article: Chemicals; Pesticides/Biocides; Life Sciences; Food; Environment General Issues; Energy; Social Affairs/Worker Safety and Institutional Issues Chemicals Hazardous Substances in...

Pre-Action Disclosure: Not A Tactical First Step.
November 8, 2004... Article by Miranda Karali and Helena Biggs If you are a claimant, in the vast majority of cases, you will know precisely the facts giving rise to your claim and against whom you have to proceed. However, occasionally, you may not know the...

So Why Did Those Ships Collide?
November 8, 2004... It has long been accepted that in Admiralty matters, expert evidence as to matters of seamanship is not admissible without the leave of the court. We take a look at the use of illustrative plotting in Admiralty cases involving collisions...

Spitzer Comes Knocking On The Insurance Industry's Door - Garamendi Standing At The Threshold.
November 9, 2004... With a press release entitled "Investigation Reveals Widespread Corruption in Insurance Industry" and the filing of a civil complaint against Marsh & McLennan Companies, Inc. and Marsh Inc., Eliot Spitzer formally opened the next front in his...