Mondaq Business Briefing articles from October 2005

Mondaq Business Briefing archives from October 2005

Lobbyist Registration Act.
October 3, 2005... Originally published June 2005 Effective June 20th, 2005, amendments to the Lobbyist Registration Act and related regulations have come into effect. In light of these significant changes, and pursuant to the issuance of three...

Timely Boost for Renewables in China.
October 3, 2005... Originally published 19th August 2005 The recent passing of the 'Renewables Law' is set to turn China into a global heavyweight in the future development of the renewable energy sector. According to estimates, China's energy...

No Clear and Unmistakable Surrender Where USPTO May Have Had Alternate Grounds for Allowing Claim.(AquaTex Industries, Inc)(Techniche Solutions)
October 3, 2005... The U.S. Court of Appeals for the Federal Circuit has shed some additional light on the application of prosecution history estoppel under Festo to certain narrowing claim amendments. Specifically, the Court held that where a narrowing amendment...

Board Must Consider Rebuttal Evidence to New Ground of Rejection.
October 3, 2005... Addressing the issue of whether the Board of Patent Appeals and Interferences (the Board) must consider evidence submitted by the applicant during the appeal to rebut a position taken by the Board that was not presented during prosecution, the...

Rotating Seat Slides Away From Patent Holder.
October 3, 2005... In another narrow application of the doctrine of claim element vitiation, the U.S. Court of Appeals for the Federal Circuit held that an accused product having a "rotatably mounted" movable end did not infringe patent claims reciting a...

Insurance Law Update - August 2005.
October 3, 2005... Contents California Supreme Court Affirms Insurers' Right to Reimbursement - By Joseph Pelochino Massachusetts Supreme Court Addresses Insurance Requirements for Employee Leasing Companies - By Vanessa O'Brien Claims of Abuse and...

New court rules on disclosure - are your electronic documents in order?
October 3, 2005... As from today, new guidance on the exchange of electronic documents in the disclosure process forms part of the Civil Procedure Rules. The guidance will impact on the way parties deal with electronic documents in litigation. It may also have...

First insurance scheme sanction by English Court since BAIC.(British Aviation Insurance Company Limited)
October 3, 2005... The judge who refused to sanction the British Aviation Insurance Company Limited (BAIC) Scheme, has now sanctioned a Scheme promoted by 18 Dutch insurance companies. This is the first Scheme to be sanctioned by the English Court since the BAIC...

Drug Manufacturer Rebates to PBM for Exclusive Formulary Listing Do Not Violate the Sherman Act.
October 3, 2005... A U.S. District Court in Ohio granted summary judgment for defendants in a class action suit alleging that a drug manufacturer's rebates to pharmacy benefit managers in order to obtain an exclusive listing in the PBMs' drug formulary violated...

FERC Slams Door on Interlocking Officer and Director Rules.(Federal Energy Regulatory Commission)
October 3, 2005... The Federal Energy Regulatory Commission ("FERC") slammed a door in the face of those pleading for leniency in complying with its officer and director interlock rules. Adopting final rules, effective October 24, 2005, FERC emphasized again that...

Income Tax and VAT Reforms.
October 3, 2005... By Ricardo A. Cevallos, Rodolfo Perez and Omar Martinez The Tax Code is the general tax law in El Salvador, but two additional laws regulate specific types of taxes: the Income Tax Law and the Value Added Tax (VAT) Law1. Recent reforms have...

Antitrust and the 2005 Supreme Court Term.
October 3, 2005... As the first Monday in October approaches, the business community should be paying more attention than usual to the start of the 2005-2006 Supreme Court term. In addition to a new Chief Justice, the Court has a substantial antitrust docket for...

Understanding U.S. Electronic Discovery and "Best Practices" Therefore.
October 3, 2005... Discovery requests for electronic discovery can be a nightmare. Whether in a regulatory investigation or in a patent infringement lawsuit, those seeking information typically request years of e-mails and assume that such electronic discovery is...

Senate Approves New Regulations on Internet Services.
October 3, 2005... By Alberto Maria Lasheras-Shine and Emilio Beccar Varela On May 18 2005 the Senate approved Law 26,032 on Internet Services in order to include the search, receipt and dissemination of information and ideas through the Internet within the...

ANEEL Prepares for Next Round of Electricity Auctions.(Brazilian Electricity Agency )
October 3, 2005... By Ricardo Barretto and Milene Coscione The Brazilian Electricity Agency (ANEEL) has made available on its website a proposed notice of the third and fourth auctions for the purchase of electricity from existing generator enterprises. A...

Health Plans Must Provide Notice on Medicare Part-D Creditable Coverage.
October 3, 2005... By Nicole Bogard (Fort Lauderdale) Originally published October 2005 By November 15, 2005, group health plans offering prescription drug coverage to retirees and active employees who are entitled to Medicare must provide a notice to...

The FSA, Compliance and Anti-money Laundering Controls.(Financial Services Authority)
October 4, 2005... Originally published August 2005 In the last few weeks it has become clear that the Financial Services Authority has a renewed focus on private equity firms, their compliance and anti-money laundering controls. It has found a number of...

Human Rights Challenge Causes Discord in the Court of Appeal.
October 4, 2005... Originally published September 2005 The Human Rights Act, which incorporates the European Convention on Human Rights into UK law, came into force on 2 October 2000. At the time there was considerable speculation about its likely impact on...

Implementation of the Electricity Directive.(Electricity Act )
October 4, 2005... The government has recently presented a bill1 for the implementation of the revised EU Electricity Directive (2003/54/EC). The changes mainly concern the Electricity Act.2 Since Sweden reformed its electricity market in 1996, the government...

Draft Prudential Governance Standard For APRA-Regulated Institutions.(Australian Prudential Regulation Authority)
October 4, 2005... In May 2005 the Australian Prudential Regulation Authority (APRA) released a draft Prudential Standard and an associated discussion paper on the governance of APRA-regulated institutions. The draft standard sets out the minimum governance...

Tax Uncertainty: New Hydrocarbon Law under the Microscope.
October 4, 2005... By Riccardo Indacochea, Iver Von Borries and Alonson Indacochea On March 21 2005 the Bolivian Senate again considered the controversial Hydrocarbon Law, which has divided the country in half and was a key reason behind President Carlos D...

Revision Of Tax Allowances In Respect Of Movies.
October 4, 2005... SARS recently published a draft legislation that will deal with tax allowances to be claimed in respect of production costs and post production costs in respect of films. Even though a film owner can still claim a film allowance in respect of...

European Application Of UNCITRAL Model Law On Arbitration.(United Nations Commission on International Trade Law)
October 4, 2005... 1. Introduction Arbitration as a means of settling commercial disputes between parties of different nationalities has been a popular and successful alternative to national courts for decades. Parties entering into economic agreements often...

Practical Steps for Directors to Consider After Disney.
October 4, 2005... Originally published October 3, 2005 By Brian E. Pastuszenski, Ettore A. Santucci and Christine S. Chung Overview On August 9, 2005, after a 37-day trial, the Delaware Chancery Court issued an important decision in the...

Third Circuit Raises the Bar for Substantive Consolidation.
October 4, 2005... The substantive consolidation of two or more entities is an important tool available to a bankruptcy court overseeing the cases of related companies whose financial affairs are hopelessly entangled or whose separate corporate identities...

Supreme Court Provides New Penalties for Due Process Violations.
October 4, 2005... Introduction Philippine labour laws distinguish between two categories of employer-initiated terminations: (i) those involving blameworthy conduct (eg, serious misconduct, fraud, breach of trust, and gross and habitual neglect);...

Employment Briefings Alert - August 2005.(Taylor v. Progress Energy, Inc)
October 4, 2005... U.S. Court of Appeals Holds Employees May Not Waive Claims Under FMLA In Taylor v. Progress Energy, Inc., the U.S. Court of Appeals for the Fourth Circuit held that - without prior Department of Labor or court approval - an employee may...

Environment calendar - October 2005.
October 4, 2005... The environment calendar highlights key dates for proposed and existing legislation and policy and closing dates for consultation papers relating to major environment issues in the EU and England. It will provide a useful tool for...

Supreme Court Docket Report - 2005 Term, No. 1.
October 4, 2005... By Charles Rothfeld and David Gossett Originally published September 27, 2005 Recently the Supreme Court granted certiorari in two cases of interest to the business com-munity. Amicus briefs in support of the petitioners will be due on...

Naming an expert - the risks.(Nicos Varnavas Hajigeorgiou v Vassos Michael Vasiliou)
October 4, 2005... Over the summer you may have missed our article in Insurance Day which discusses the Court of Appeal decision in Nicos Varnavas Hajigeorgiou v Vassos Michael Vasiliou and the new Protocol for the Instruction of Experts. To view the article...

Changes to CBCA and OBCA Now Enable U.S. GAAP Reporting for Cross-Listed Issuers.(Canada Business Corporations Act)(Ontario Business Corporations Act)
October 4, 2005... These amendments make the requirements of the federal and Ontario corporate statutes consistent with the changes to Canada's securities law regime adopted over a year ago, offering companies that are incorporated in these jurisdictions and...

Investment Funds in the Cayman Islands , British Virgin Islands and Bermuda.
October 4, 2005... The offshore funds market is growing rapidly and the Cayman Islands ("Cayman"), the British Virgin Islands ("BVI") and Bermuda have become the pre-eminent jurisdictions for the establishment of investment funds. Cayman alone boasts over 6,000...

From Deepsouth Shrimp to Microsoft Windows: Exporting Components of Patented Inventions under 35 U.S.C. s. 271(f).
October 4, 2005... For many years Congress and the courts have struggled to maintain the delicate balance between encouraging innovation via the patent laws on the one hand, and using those same laws to stifle the development and marketing of products in the...

Failure to Provide a Reason for a Narrowing Amendment Leads to Forfeiture.
October 4, 2005... The U.S. Court of Appeals for the Federal Circuit, affirming a summary judgment decision, found that the accused fertilizer did not infringe either directly or under the doctrine of equivalents as the aggregate amount of its phosphorus...

After Phillips, Panel Decision Pits Dictionary Definitions and Plain Meaning Against the Intrinsic Evidence.
October 4, 2005... Illustrating the extent to which the Phillips decision is likely to alter claim construction in the future, a panel of the U.S. Court of Appeals for the Federal Circuit, on reconsideration, reversed its earlier decision on several claim...

CAT imposes competition remedy on Genzyme.(Competition Appeal Tribunal, Genzyme Limited)
October 4, 2005... On 29 September 2005 ,the Competition Appeal Tribunal (CAT) gave its judgment on the remedy to be imposed on Genzyme Limited, following the CAT's earlier decision on the merits of the case (which found that Genzyme had infringed UK competition...

Deliotte Weekly VAT News - Week ended 30 September 2005.
October 4, 2005... Companies with overseas branches - no VAT on inter-branch services? International companies will be pleased with the opinion of the ECJ's Advocate-General in the case of FCE Bank, as it concurs with the UK's practice of disregarding...

Top Ten Myths About Trade-Marks.
October 4, 2005... Article by Sharon Groom and Terry Chan I have registered a business name so I don't need to register a trade-mark. Registering corporate and business names offers little protection within, and no protection outside, the jurisdiction in...

Video Surveillance of Employees and Private-Sector Privacy Legislation.
October 4, 2005... This article was originally published in Blakes Bulletin on Labour & Employment in September 2005 Article by Brian Thiessen & Jessica Bullock, [c]2005 Blake, Cassels & Graydon LLP Video surveillance of employees constitutes the...

The "One Focused Line of Business" Requirement for Listing on the Hong Kong Secondary Board.
October 4, 2005... Background Under the Hong Kong secondary board GEM Listing Rules, a new applicant applying for a GEM listing is required to demonstrate that throughout its active business pursuit period ("ABP Period") it has, either by itself or through...

Transfer Pricing and Private Equity - Guidance Issued.
October 5, 2005... Originally published September 2005 The March 2005 announcement that the transfer pricing legislation would be widened to catch more private equity transactions has caused concern and uncertainty in the private equity industry. The...

Court Finds SEC's Enforcement Action Against Siebel Systems Was "Overly Aggressive" Interpretation Of Regulation FD.(Securities and Exchange Commission)
October 5, 2005... "Excessively Scrutinizing" Executives' Words Can Chill the Public Disclosure Reg FD Was Meant to Encourage In the first reported decision dismissing a Securities and Exchange Commission ("SEC") enforcement action under Regulation Fair...

Data Security Breaches - What You Need to Know Now.
October 5, 2005... Originally published October 4, 2005 Executives of financial services firms--as well as consumers-- are painfully aware of well-publicized security breaches over the past several months. Driven in large part by disclosures made to consumers...

Leave-Based Donation Programs Facilitate Hurricane Katrina Relief Efforts.
October 5, 2005... In the past month, residents of the Gulf Coast region have suffered extreme hardship following the unprecedented damage and destruction caused by Hurricane Katrina. Americans across the country have answered the call to help once again, and aid...

Employment Law changes effective 1 October 2005.
October 5, 2005... There are a number of changes taking effect from 1 October which will impact on employers. The key changes include: Changes to sex discrimination laws The Employment Equality (Sex Discrimination) Regulations 2005 came into force...

HM Treasury proposals create new challenges for personal pension providers.
October 5, 2005... As part of the move to simplify pension provision, the Treasury is proposing to create a new FSA regulated activity in relation to personal pension schemes, including SIPPs. Under the proposals put forward in a consultation paper published...

Duty To Accommodate - Recent Quebec Decisions.
October 5, 2005... This article was originally published in Blakes Bulletin on Labour & Employment in September 2005 Article by Natalie Bussiere, [c]2005 Blake, Cassels & Graydon LLP Over the last few years, Quebec courts and tribunals have rendered...

Legal Challenges in Converting to Defined Contribution Pension Plans.
October 5, 2005... This article was originally published in Blakes Bulletin on Pension & Employee Benefits in September 2005 Article by Caroline Helbronner & Elizabeth Boyd, [c]2005 Blake, Cassels & Graydon LLP Employers that want to provide defined...

Good News for Potential IPOs.
October 5, 2005... Late last week the SEC announced the extension of compliance dates for Sarbanes-Oxley Section 404 reports by nonaccelerated filers until their first fiscal year ending after July 15, 2007. This is welcome news for smaller public companies. In...

Pension Law Regulatory Update and New Case Developments.
October 5, 2005... This article was originally published in Blakes Bulletin on Pension & Employee Benefits in September 2005 Article by John Solursh, [c]2005 Blake, Cassels & Graydon LLP In 2005, the law on pensions and employee benefits has continued to...

Court Fee Reduced by Popular Demand.(Brief Article)
October 5, 2005... Until recently, plaintiffs in Denmark had to pay a fee of 2.0% of the amount they were claiming in court. An additional fee of 0.4% of the claim was payable when the date of the hearing was fixed - this fee was repayable if the claim was...

Sweeping New Rules Apply to Securities Offerings by Technology and Life Science Companies.
October 5, 2005... A major modernization of federal regulations that apply to registered securities offerings takes effect december 1, 2005. The changes include welcome improvements to current rules, as well as new concepts that may, over time, fundamentally...

Quebec Court of Appeal Leaves Door Open to Arbitration of Consumer Disputes.
October 5, 2005... Article by Babak Barin, Helen Ferrigan and Randy Pepper In Dell Computer Corporation v. Union des consommateurs, the court's comments suggest that a consumer contract that provides for arbitration as the exclusive method of dispute...

What are You Doing to get Ready for Civil Liability in the Secondary Market?
October 5, 2005... Article by Jean M. Fraser, Larry P. Lowenstein, Andrew MacDougall, Douglas R. Marshall, Robert M. Yalden and Jacqueline R. Code The Ontario government has proclaimed amendments to the Ontario Securities Act to create new causes of action...

Publication of IRC Section 409A Proposed Regulations.
October 5, 2005... On September 29, 2005, the Treasury Department released the much anticipated Proposed Regulations to Section 409A of the Internal Revenue Code (the "Proposed Regulations"). This is a summary of some of the more relevant points of the Proposed...

The Flexible Working Request.
October 5, 2005... A recent case involving British Airways has highlighted some of the difficulties for employers in flexible working arrangements. The case demonstrates that mistakes can be made even by large employers, leading to costly claims and giving rise...

Phillips Decision Is Applied in Construing "Downloadable Component".
October 5, 2005... The U.S. Court of Appeals for the Federal Circuit upheld a claim construction and summary judgment grant of non-infringement by Windows Media Player of a patent directed to a method and system for purchasing electronic information, such as...

Official Fees for IP Protection.
October 5, 2005... On December 23 2004 the Cabinet of Ministers approved Decree 1716, which sets out regulations on the official fees for IP protection. The decree will enter into force on February 5 2005. The rates of the official fees are established both...

Admitted Prior Art May Limit Claim Construction.
October 5, 2005... The U.S. Court of Appeals for the Federal Circuit, applying the recent Phillips decision, upheld summary judgment of non-infringement of Terlep's patent for omni-directional light-emitting diode (LED) lamps based on the Court's construction of...

TiVo Pauses Infringement Claims (Web Only).
October 5, 2005... Addressing the issues of claim construction, the U.S. Court of Appeals for the Federal Circuit upheld a summary judgment of non-infringement against Tivo Inc. based on limitations to a claim element imposed by the claim considered as a whole....

Hot Air Becomes Reality.
October 5, 2005... Entry into Force of MARPOL Annex VI Requirements On May 19 2005 the first wave of requirements under the International Convention for the Prevention of Pollution from Ships (MARPOL) Annex VI - environmental regulations imposing global and...

Banking Act Allows for Joint Banking Register.(Brief Article)
October 5, 2005... Under the Banking Act, banks and branches of foreign banks can establish a Joint Banking Register which will facilitate the preparation, conclusion and performance of clients' trades and evidence the activities of banks and branches of foreign...

Exemption Method in Payment of Dividends.(Brief Article)
October 5, 2005... According to Article 4 of the EU Parent-Subsidiary Directive (90/435/EC) on the common system of taxation applicable to parent companies and subsidiaries of different EU member states, member states must: (i) refrain from taxing (ie, the...

Regulation of Stormwater Pollution: An Area of Increasing Importance to the Construction Industry.
October 5, 2005... By Bonni Kaufman, Lawrence R. Liebesman and Rafe Petersen (Washington D.C.) Originally published September 2005 In May 2004, the United States Environmental Protection Agency (EPA) announced a major new enforcement initiative related...

Washington, D.C.: "That's Not What I Agreed To!" - The Legal Concept of Abandonment of Contract.
October 5, 2005... By Gregory H. Koger (Washington, D.C.) Originally published September 2005 Once two sophisticated parties have entered into a binding contractual agreement, legal principles, in general, tend to discourage the dissolution of that...

Pension Regulation and Court Trends in British Columbia.
October 5, 2005... This article was originally published in Blakes Bulletin on Pension & Employee Benefits in September 2005 Article by Scott Sweatman, [c]2005 Blake, Cassels & Graydon LLP British Columbia pension regulators are stepping up enforcement...

Statutory Protection for Software Development Workers.
October 6, 2005... Article by Anand Prasad and Biraj Tiwari Under the Industrial Disputes Act 1947 workers are protected against the wrongful or "at will" termination of their employment. The employer is obliged to give a worker: at least one...

How Far Back Is the "Rear End"?
October 6, 2005... The U.S. Court of Appeals for the Federal Circuit, in an appeal involving multiple summary judgment motions, vacated the district court's claim construction of the term "rear end" as recited in connection with a caulking tube and remanded the...

Non-Physical Differences can be Material in Gray Market Cases.
October 6, 2005... Following up on its ruling in Gamut, the U.S. Court of Appeals for the Federal Circuit clarified that "material differences" that are a predicate to a gray market trademark infringement case do not need to be physical. However, the trademark...

Trans Fat Labeling Requirements.
October 6, 2005... On January 1, 2006, the FDA's rule requiring trans fat labeling will become effective. The final rule, entitled "Trans Fatty Acids in Nutrition Labeling, Nutrient Content Claims, and Health Claims," was first published by the FDA on July 9,...

IRS Issues Proposed Regulations Relating to Deferred Compensation.
October 6, 2005... Article by Dan Meehan, Buff Miller, Thomas Reicher, David Walsh and Thomas Welk Yesterday, the IRS issued proposed regulations under Code s.409A. As discussed in our prior Cooley Alerts,1 s.409A covers a wide range of nonqualified deferred...

Communications Law Bulletin - September 2005.
October 6, 2005... The Month in Brief Just as this issue of our Bulletin was going to press, the Federal Communications Commission ("FCC" or "Commission") released the full text of its long-awaited order on regulation of broadband Internet access services....

Aerospace News: Safety Regulation Versus Consumer Rights?
October 6, 2005... Traditionally, the primary focus of aviation authorities has been safety regulation. Whilst that primary focus remains, recent years have seen increased concentration on passenger rights legislation, particularly, though not exclusively, in...

Communications Law Bulletin - September 2005 Part Two.
October 6, 2005... Universal Service Developments Hurricane Katrina's Universal Service Impact In the wake of Hurricane Katrina, the FCC has taken numerous steps to provide relief to affected consumers and companies. First, Chairman Martin is proposing...

SEC Postpones Filing Deadline for "404" Internal Control Reports for "Nonaccelerated Filers".(Securities and Exchange Commission)
October 6, 2005... Internal Control Over Financial Reporting (Section 404 Requirements) Effective September 29, 2005, the SEC extended by one year the compliance date for the inclusion of management's annual report and auditor attestation in Form 10-Ks for...

Medicaid Drug Pricing: Increasing Federal and State Focus on Enforcement and Cost Containment.
October 6, 2005... Summary Action: Congressional testimony in June 2005, multiple reports issued by HHS' Office of Inspector General ("OIG"), and recent California litigation against pharmaceutical companies, all indicate that enforcement activity focused on...

SEC Proposes Changes to Definition of "Accelerated Filer" and Easing of Filing Deadlines for Periodic Reports (Including Complete Elimination of the Currently Scheduled 35-Day Form 10-Q Deadline for All Filers).(Securities and Exchange Commission)
October 6, 2005... Proposed Changes to Periodic Report Filing Deadlines and to the Definition of "Accelerated Filer" On September 21, 2005, the SEC proposed amendments to certain of its periodic reporting filing deadlines and to the definition of...

The Proposed Nonqualified Deferred Compensation (s. 409A) Regulations.
October 6, 2005... By George H. Bostick, Adam B. Cohen, Ian A. Herbert, Carol T. McClarnon, Alice Murtos, Robert J. Neis, W. Mark Smith, William J. Walderman, Carol A. Weiser, Brendan M. Wilson and Walter H. Wingfield. Originally published October 4, 2005 ...

DOL Issues "Plan Asset" Advice for Insurance Company Investment Transactions.
October 6, 2005... By George H. Bostick, Daniel M. Buchner, Adam B. Cohen, Ian A. Herbert, Carol T. McClarnon, Alice Murtos, Robert J. Neis, W. Mark Smith, William J. Walderman, Carol A. Weiser, Brendan M. Wilson and Walter H. Wingfield Originally published...

Seventh Circuit Rules UAL's 'Lease' is a Secured Loan.
October 6, 2005... Article by Reed Smith Commercial Restructuring & Bankruptcy Team The U.S. Court of Appeals for the Seventh Circuit has ruled that a United Airlines airport facilities lease was not a true lease but in fact a secured loan. The holding in...

The Deferred Prosecution Agreement: Corporate America's Get-Out-of-Jail Card, But At What Price?
October 6, 2005... On August 29, 2005, the Department of Justice announced that KPMG had admitted to criminal wrongdoing and agreed to pay $456 million in fines, restitution and penalties as part of an agreement to defer prosecution of the firm. In addition to...

The Effects of the New Bankruptcy Amendments on the Health Care Industry.
October 6, 2005... The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("Amendments"), which becomes effective in most instances in bankruptcy cases filed on or after October 17, contains numerous changes that impact cases arising in the health...

SEC Extends Section 404 Compliance Date for Non-Accelerated Filers and Proposes Changes in Accelerated Filing Structure.(Securities and Exchange Commission)
October 6, 2005... Originally published October 4, 2005 On September 21, 2005, at the first open meeting under new Chairman Christopher Cox, the Securities and Exchange Commission (SEC) approved a one-year extension of the deadline for non-accelerated filers...

SB-1 is Preempted by the FACT Act.
October 6, 2005... A federal district court in Sacramento (England, J.) has found the "affiliate-sharing" provisions of "SB-1" preempted by the FACT Act. Better known as SB-1, California's Financial Information Privacy Act (Fin. Code s.4050) marked a sharp...