Mondaq Business Briefing articles from October 2007

Mondaq Business Briefing archives from October 2007

Changes In Civil Procedure And Judicial Culture Affect Business Practices.
October 1, 2007... When the Brazilian Code of Civil Procedure was adopted in 1973, the need for procedural rules that would allow for effective and rapid solutions to disputes was already much discussed. Since then, many constitutional amendments and bills to...

CVM Issues New Rules On Coercive Fines.(Comissao de Valores Mobili rios)(Coercive fines )
October 1, 2007... After public consultation, on April 30, 2007 the Brazilian Securities Commission (Comissao de Valores Mobili rios - CVM) issued CVM Instruction 452, which revokes CVM Instruction 273/98 and establishes more detailed rules on the application of...

SCC Divided On Key Issues Of Copyright Law And Policy: Grey Marketer Prevails.
October 1, 2007... On July 26, 2007, the Supreme Court of Canada (SCC) issued its decision in the case of Kraft Canada Inc. v. Euro Excellence Inc. The SCC allowed the appeal of Euro Excellence, thereby disallowing Kraft Canada's claim of secondary infringement...

Proposal For Constitutional Reform.
October 1, 2007... The President of the Republic in his official address to the Nation on August 15, 2007, presented his proposal for the reform of 33 articles of the Constitution of the Bolivarian Republic of Venezuela. Following are the main aspects of the...

A Random Walk Down The Final Section 409A Regulations.
October 1, 2007... Reprinted from Benefits Law Journal Autumn 2007, Volume 20, Number 3, pages 1-4, with permission from Aspen Publishers, Inc., Wolters Kluwer Law & Business, New York, NY, 1-800-638-8437, www.aspenpublishers.com. Slogging through the nearly...

District Court v. USPTO: The Battle Of Claim Construction Standards.(United States Patent and Trademark Office)(Trans Texas Holdings Corp.)
October 1, 2007... In affirming a decision of the Board of Patent Appeals and Interferences (the Board) the U.S. Court of Appeals for the Federal Circuit made clear that during reexamination of a patent, the USPTO is not bound by a district court's claim...

Reliance On Examiner's Oral Promise Fatal To Petition To Revive Abandoned Application.
October 1, 2007... Relying on 37 C.F.R. s.1.2, which states that all business with the U.S. Patent and Trademark Office (USPTO) should be transacted in writing and that no attention will be paid to any alleged oral promise in relation to which there is...

"Point Of Novelty" In A Combination Design Patent Must Be A "Non Trivial Advance".(Egyptian Goddess, Inc.)(Swisa, Inc.)
October 1, 2007... In a decision addressing the point of novelty test for design patent infringement, the U. S. Court of Appeals for the Federal Circuit held that the patentee's asserted point of novelty "constituted a non-trivial advance over the prior art" and...

Constructive Reduction To Practice Of A Count May Be Established By Disclosure Of Species.
October 1, 2007... (c) Mondaq Ltd, 2007 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com Reversing a decision by the United States Patent and Trademark Office Board of Patent Appeals and Interferences (Board) in a patent interference, the U.S. Court of...

New Protocol Proposes Major Changes To The Canada-US Income Tax Treaty.
October 1, 2007... On September 21, 2007, representatives of Canada and the US signed the Fifth Protocol to the Canada-United States Income Tax Convention ("Protocol"). The Protocol will enter into force after ratification by both countries, which is not expected...

Amendments To Canadian Insider Reporting Exemptions.
October 1, 2007... Canadian securities regulators have recently revised some of the rules governing insider reporting. National Instrument 55-101, Insider Reporting Exemptions, provides relief from the obligation to file insider reports in certain situations and...

Freedom, Regulation, And Net Neutrality.
October 1, 2007... Die ich rief, die Geister, werd' ich nun nicht los!1 Introduction The current debate over network neutrality - in all meanings of that phrase - embodies at its core a fundamental contradiction. Some parties ("Netheads2") extol the...

Investing In French Real Estate Through A Mauritius GBL1.
October 1, 2007... We would like to examine the advantages of holding French real estate (either principal residence or secondary home) through a Mauritius company and to avoid the three percent yearly tax on assessed value. Additional estate planning...

New York State Task Force Targets Employers Who Misclassify Workers.
October 1, 2007... On September 7, 2007, Governor Spitzer signed an Executive Order establishing the "Joint Enforcement Task Force on Employee Misclassification" (the "Task Force"). The Task Force is designed to strengthen New York State's enforcement of laws...

To Land Or Not To Land.
October 1, 2007... Owners of licensed airfields have an onerous obligation to ensure that services provided to pilots are adequate, safe and reliable. There is little room for error. There is a general statutory and common law duty to maintain an airfield in a...

The Department Of Homeland Security Publishes Regulations Providing A "Safe Harbor" Procedure For Employers Who Receive No-Match Letters From The Social Security Administration. Is It Really A "Safe Harbor"?
October 1, 2007... Originally published August 2007 New Rules Regarding "No-Match" Notification Letters Recently the Department of Homeland Security (DHS) published its amended regulations, providing further guidance to employers who receive written...

Interdicting The Media - A Losing Strategy.
October 1, 2007... When faced with the prospect of being implicated in a story by an investigative journalist, many influential business people instruct their lawyers to urgently apply to court to prevent the publication of the story. Generally such applications...

Exercise Of Delaware Appraisal Rights Still A Long And Uncertain Process.
October 1, 2007... When minority stockholders feel as if they have not received fair value as the price in a "cash-out merger" transaction, they often consider seeking appraisal rights for their stock. In a recent decision, Highfields Capital, Ltd., Highfields...

An Entrepreneur's Guide To Getting A Company Ready For Sale.
October 1, 2007... As an entrepreneur running a business, you may contemplate selling it one day. While that date may seem remote now, any number of events could give rise to a sale - you may want to raise capital for another venture or sell one part of your...

Special Report: What Trademark Owners Really Need To Know About The .ASIA Sunrise.
October 1, 2007... If you are a trademark owner or represent one, you have almost certainly received numerous notifications that the .ASIA sunrise period opens October 9, 2007. Most of these notifications are likely solicitations from various service providers...

U.S. District Court Decision Points Out Potential Risks In Non-Recourse Loans.
October 1, 2007... Borrowers and Guarantors Urged to Negotiate Clear, Defensible "Bad-Boy Provisions" That Limit Liability Earlier this year, in a decision handed down in favor of a commercial mortgage lender, the United States District Court for...

Professional Indemnity: Architects.
October 1, 2007... In Pearson v Charter Partnership, the Court of Appeal revisited the principles underlying the decision in Baxall which allowed a negligent architect to escape liability in tort due to an intervening event. In 2002, the Court of Appeal in...

Throwing Your Weight Around - A Thing Of The Past In Australian Business?
October 1, 2007... Small business has stacked up a significant number of wins over big business in developments Australian commercial law in recent times.Three of the most topical are: Unconscionable Conduct In Business Transactions The cut-off for...

Ohio Opens The Door For Majority Voting In Director Elections.
October 1, 2007... As a result of a recent amendment to Ohio law,1 effective January 1, 2008, shareholders of Ohio corporations may require that director candidates receive a majority vote in order to be elected. Under the current plurality voting standard of...

Beware Of Changing Credit Terms On The Eve Of Your Customer's Bankruptcy.
October 1, 2007... Two recently issued decisions may make it more difficult for a preference defendant to establish the ordinary course of business defense when the defendant revises credit terms with a customer having financial difficulty on the eve of the...

CMS Issues Final Rule On Revisit User Fees.
October 1, 2007... On September 19, 2007, the Centers for Medicare & Medicaid Services (CMS) published a final rule establishing "revisit user fees." These fees will be assessed against health care facilities participating in the Medicare program that, failing to...

Corporate Countdown - Setting Out A Tax Timetable.
October 1, 2007... This article first appeared in the July / August 2007 edition of Iberian Lawyer While not as dramatic as anticipated, Gibraltar's recent budget provides a timetable for the long-awaited introduction of a new low corporate tax regime, says...

SEC Adopts Temporary Rule Regarding Adviser Principal Trades And Other Interpretive Guidance Regarding Broker-Dealer Adviser Activities.(United States. Securities and Exchange Commission)
October 1, 2007... On September 19, 2007, the Securities and Exchange Commission (the "Commission" or "SEC") adopted a temporary rule ("Temporary Rule") that provides limited relief to firms registered as investment advisers under the Investment Advisers Act of...

Best Endeavours vs Reasonable Endeavours - Why The Fuss?
October 1, 2007... A contract will often impose an obligation on a party to use best endeavours or reasonable endeavours in relation to some act or thing eg. an obligation to "obtain finance". Since parties typically want to minimise their obligations under...

Equality Before The Law.
October 2, 2007... Introduction Employment Equality legislation in Ireland is to be found in the Employment Equality Act 1998 as amended by the Equality Act 2004. This legislation is extremely detailed but in effect makes it unlawful for employers to...

Market Abuse Directive.
October 2, 2007... Introduction The EU Market Abuse Directive, implemented in Ireland on 1 July, 2005 as the Market Abuse (Directive 2003/6/EC) Regulations (the "Regulations"), imposes significant obligations on all listed issuers (both Irish and overseas)...

Implementation Of The Transparency Directive - Closed Ended Funds.
October 2, 2007... The Transparency Directive (2004/109/EC) (the "TD") was implemented into Irish law on 13th June 2007 by the Transparency (Directive 2004/109/EC) Regulations 2007 (the "Regulations") and has effect from this date. The TD seeks to enhance...

FTC Affirms ALJ's Decision That a Merger by Chicago Area Hospitals Violated the Antitrust Laws.(United States. Federal Trade Commission)(Evanston Hospital (Evanston, Illinois))(Clayton Act)(administrative law judge)
October 2, 2007... LAW WATCH[R] is now Legal News...a modern approach to delivering the same cutting-edge thought-leadership you've come to expect from Foley. Action: The full panel of Federal Trade Commission (FTC) Commissioners (the Commission) upheld the...

The TIC Industry - What To Expect In 2008.
October 2, 2007... The current year, 2007, has presented unprecedented challenges to the Tenant-in-Common (TIC) industry, including: A declining base of anxious sellers of appreciated real estate looking for exchange opportunities Confusion and concern...

The Insurance Mediation Directive - Transposition Challenges And Pitfalls.
October 2, 2007... Introduction The Government's second attempt to transpose the Insurance Mediation Directive must this time give full effect within the Irish jurisdiction to the rights and obligations vested in service providers and consumers under the...

Depositions Of In-House Counsel-Protecting The Attorney-Client Privilege.(Reprint)
October 2, 2007... Previously published in In-House Defense Quarterly, Winter 2007. You were simply doing your job as in-house litigation counsel to your company-reviewing the claim; investigating the situation; gathering facts from the company's employees;...

News Alert - New Zealand Government Outlines Its Climate Change Solutions.
October 2, 2007... An emissions trading scheme, rather than the previously proposed carbon tax, will be the central platform for implementing New Zealand's commitments under the Kyoto Protocol and reducing the country's greenhouse gas emissions. This was...

News Alert - Registration Of .Asia Domain Names Opening Soon.
October 2, 2007... From 6 October 2007, trade mark owners will have the chance to register domain names in the new '.asia' top-level domain (TLD), prior to a general release of .asia names in 2008. The domain space will open in several phases, offering...

Federal Circuit Lacks Jurisdiction To Decide Appeal from Nonparty Patent Attorney.(Nisus Corp.)
October 2, 2007... The U.S. Court of Appeals for the Federal Circuit recently dismissed the appeal of a patent attorney involved in the prosecution of an application, resulting in a patent that a district court held unenforceable due to inequitable conduct. Nisus...

Go Celebrate Mr. Jackson; Here's 50 Cent For Your Birthday.(cases of infringement on Curtis Jackson)
October 2, 2007... Addressing an unusual but high-profile copyright dispute involving famous rappers, the U.S. Court of Appeals for the Eleventh Circuit granted summary judgment for rapper Curtis Jackson (a.k.a. 50 Cent) on claims that he infringed the copyright...

Ninth Circuit Rules That Vote-Swapping Websites Cannot Be Prosecuted Under Vote-Buying Statutes.
October 2, 2007... In a decision that could have significant implications for the upcoming 2008 presidential election, the U.S. Court of Appeals for the Ninth Circuit held that California's former Secretary of State Bill Jones improperly threatened criminal...

New Protocol To Canada-U.S. Tax Treaty - Elimination Of Withholding Tax On Interest And Other Changes.
October 2, 2007... Part I of our Tax Series on the Protocol Canada and the United States signed the widely anticipated 5th protocol (the "Protocol") to the Canada-U.S. Tax Treaty (the "Treaty") today. Once it has been ratified by both countries, the Protocol...

From Watergate To Videogate.(National Football League)
October 2, 2007... You may have read about the recent controversy involving the New England Patriots after a team official was caught videotaping opposing team defensive signals. The National Football League fined Coach Bill Belichick $500,000 while the...

Stakes Rise Over Debtors' Duty To Preserve ESI.(electronically stored information)(Reprint)
October 2, 2007... Reprinted with permission from The Journal of Corporate Renewal, April 2007. Difficulties in complying with the duty to preserve electronically stored information (ESI) have been chronicled in a rich body of case law going back several...

Risk Mitigation Strategies For Manufacturers Of Nanomaterials.
October 2, 2007... Despite regulatory uncertainties and the lack of safety data, companies are rushing nanomaterials to market in a wide variety of FDA-regulated product categories. A public inventory of products that claim to contain nanomaterials includes...

Law Update: Immigration And Nationality.
October 2, 2007... Dealing With Immigration Issues: What Does The Future Hold For An Employer? No one in the United States has been able to avoid the issue of immigration during the past year, most certainly not the U.S. employer. It has been a tumultuous...

EU Rules Affecting Outsourcing In The Financial Services Sector In Europe.
October 2, 2007... KEY WORDS - MiFID, outsourcing relationship, financial services sector, operational risk, good practice, core investment services, material outsourcing, critical functions The financial services sector in Europe will become subject to a...

Managing Harassment Complaints With An Eye Toward Litigation.
October 2, 2007... Originally published in The Metropolitan Corporate Counsel, Volume 15, No. 9, September 2007. Allegations of harassment can impact a company's finances - if a claim goes to trial - and its reputation, something which it has spent years...

Migrating IP Offshore Within A Transfer Pricing Setting.
October 2, 2007... Article by Dale C. Hill and Santino Di Libero1 I. Introduction If a multinational corporation had the luxury of perfect hindsight, it would optimize its global positioning and operational efficiencies by migrating intangible assets...

PIMCO's Bill Gross On Home Prices, Changes In The Credit Markets, And Their Impact On The Fed's Future Rate Decisions.(Brief article)
October 2, 2007... Originally Posted in Cooley Godward Kronish LLP's In The (Red) Business Bankruptcy Blog, October 1 2007 Bill Gross, Managing Director at Pacific Investment Management Company LLC, known as PIMCO, has some interesting comments on the credit...

Newly Passed Bill Heightens Scrutiny Of Foreign Investment In U.S.(Dubai Ports World)
October 2, 2007... Originally published in the Houston Business Journal, September 2007. Foreign investment in the United States is once again under the microscope. National security and protection of the economy were the drivers for a new law that will lead...

New Derivative Action May Lead To Increased Claims Against Directors.
October 2, 2007... Article by Guy Pendell and Lindsey Davies A new statutory framework for derivative actions comes into force today under the Companies Act 2006. These provisions widen the scope of such actions and have the potential to increase claims...

Companies Act 2006: Provisions In Force On 1 October 2007.
October 2, 2007... Monday, 1 October 2007 is one of the key implementation dates for the new Companies Act. Among other things, important changes relating to directors' duties, derivative actions and the rules on meetings and shareholder resolutions are coming...

Employee Benefits Advisory: An Employers' Guide To The 2006 Massachusetts Health Care Reform Act.(Brief article)
October 2, 2007... Updated As of September 22, 2007 For a copy of the most current version of An Employers' Guide to the 2006 Massachusetts Health Care Reform Act, please click here. This iteration of the guide incorporates changes made by the following...

Antitrust Restrictions On Bundled Discounts: Cascade Health Solutions v. Peacehealth.(Cascade Health Solutions)
October 2, 2007... On September 4, 2007, the Court of Appeals for the Ninth Circuit issued its much-anticipated opinion in Cascade Health Solutions (f/k/a McKenzie Williamette Hospital) v. PeaceHealth, No. 05-35627. PeaceHealth addresses the important issue of...

Stark Phase III Rules Loosen Recruitment And Retention Requirements.
October 2, 2007... Article by Janice A. Anderson, Michael L. Blau, Laura J. Gage, Maria E. Gonzalez Knavel, Charles B. Oppenheim, Chris E. Rossman and Lawrence W. Vernaglia On September 5, 2007, the Centers for Medicare & Medicaid Services (CMS) published...

The Reform Of Finnish Corporate Taxation.
October 3, 2007... A bill aimed at reforming Finnish corporate taxation is forthcoming in October 2007. The reform seeks to harmonise corporate tax legislation with the new Finnish Companies Act. It also aims to minimise the connection between the calculation of...

Risk Management For Trustees: Practical Lessons From Recent Cases About Providing Security For The Outgoing Trustee's Indemnity And No-Contest Clauses.(Case overview)
October 3, 2007... Most trustees understandably want nothing to do with litigation. The experience of making or defending a hostile claim is usually bad for business and certainly counterproductive to good relations between all of the parties involved in...

A Fine Balance: Two Recent Cases From The Cayman Islands.(Excerpt)(Case overview)
October 3, 2007... This article is a summary of a talk delivered at the Legal Week Trusts and Estates Litigation Conference in March 2007. Introduction No offshore jurisdiction that wishes to be taken seriously will hold itself out as the ideal place to...

Company-Sponsored Pensions - Show Some Appreciation.
October 3, 2007... Chris Murray looks at how employers can use better communication and online technology to help employees recognise the value of their company-sponsored pensions. Every year, UK employers pay millions of pounds in pension contributions, yet...

Employee Absenteeism - Making Up For Lost Time.
October 3, 2007... Employee absenteeism can have a huge impact on a business. Matt Haswell offers employers some practical advice on how to counter the losses. Sick leave and absenteeism can take a heavy toll on a company's productivity and place a huge...

Defined Contribution Schemes - Watching Out For The Workers.
October 3, 2007... A 'lifestyle' facility in a defined contribution pension scheme can be helpful to many people - but it doesn't suit everyone, warns Chris Murray. He looks at ways in which members can lower their investment risk and safeguard returns. "The...

Enhancement Of Limit Of Prepayment Of External Commercial Borrowings.(Brief article)
October 3, 2007... Earlier, the Reserve Bank of India had enhanced the limit for prepayment of External Commercial Borrowings (ECB) under the ECB Policy to USD 400 million from the earlier limit of USD 300 million. Prepayment of ECBs was permitted without prior...

Enhanced Limits Of Remittance Facilities.(Brief article)
October 3, 2007... The Liberalized Remittance Scheme (Scheme) notified by the Reserve Bank of India (RBI) for provision of simplified foreign exchange facilities to resident individuals, other than corporates, partnership firms and trusts, has been amended...

State Statutes Permitting Security Freeze On A Credit Report File.
October 3, 2007... In order to help prevent the unauthorized use of information from a consumer report file to fraudulently open a new account, over thirty-five states, as well as the District of Columbia, have enacted laws allowing an individual to place a...

Going Green Through Use Of Brownfield Sites.
October 3, 2007... Many businesses are nowadays looking for ways to both reduce their exposure to volatile energy prices and to reduce their carbon footprint. For many industrial and commercial energy consumers in possession of real estate assets located away...

Giving The Go-Ahead To Use "Hybrid" Embryos - A Big Step Forward For Stem Cell Research In The UK?
October 3, 2007... The future for stem cell research in the UK is at a critical point. The UK Government is overhauling the seventeen year old regulatory regime governing use of embryonic stem cells, and, in tandem under the existing law, the UK's regulatory body...

FRB and SEC Finalize Regulation R.
October 3, 2007... FRB and SEC Finalize Regulation R SEC Staff Grants No-Action Relief from Advisers Act Custody Requirements for Inadvertent Receipt of Client Assets from Third Party Other Item of Note CFTC Provides No-Action Relief Allowing...

Report of Recent EPO Decisions - September 2007.
October 3, 2007... This month's contributors are Ewan Nettleton, Robert Burrows and Dominic Adair EPO DECISIONS Notes: Technical Board of Appeal (TBA) Decisions are available on the EPO website at...

Copying An Independently-Created Third-Party Design Is Not Infringement Of Copyright In An Identical Design.
October 3, 2007... Addressing facts and issues that the court characterized as "unusual", the U.S. Court of Appeals for the First Circuit held that a copy of an independently created third-party design is not an infringement of a copyright on a similar design and...

No Presumption Of Validity If Long Hiatus Between Publication And Registration.(Case overview)
October 3, 2007... Addressing a copyright infringement claim in which 20 years passed between the date of first publication and the date of registration, the U.S. Court of Appeals for the First Circuit upheld the lower court's dismissal of the claim, finding that...

Changes To U.S. Rules Of Patent Prosecution Practice.
October 3, 2007... The U.S. Patent and Trademark Office (USPTO) has revised the rules of practice in patent cases relating to continuing applications and requests for continued examination (RCE) practices, as well as for the examination of claims in patent...

Cartel Regulation In Italy: Recent Cases And Developments.
October 4, 2007... "An extract from The European Antitrust Review 2008, a Global Competition Review special report - www.GlobalCompetitionReview.com" Except for differences in procedural law, Italian competition rules mirror those of the European Union. This...

Germany Cartels.
October 4, 2007... An extract from The European Antitrust Review 2008, a Global Competition Review special report - www.GlobalCompetitionReview.com" Applicable law and enforcement The legal basis for cartel enforcement in Germany is the Act against...

Employee Benefits Review - Stakeholder Pensions. The Second Coming.
October 4, 2007... In this issue: National Pension Savings Scheme Communicating pensions benefits Employee absenteeism Defined contribution schemes Forthcoming events We examine the proposed National Pension Savings Scheme, which may...

VAT Focus: A Round-Up Of Recent VAT-Related Developments.(value added tax)
October 4, 2007... Change To VAT Invoicing Requirements - An Update Following the changes outlined in the July VAT Focus, HM Revenue & Customs (HMRC) has delayed implementation of new invoicing requirements, which will now come into effect from 1 October...

Federal Court In Texas Denies Ford Motor Company's Motion To Dismiss In $42 Million Customs Recordkeeping Lawsuit.(Ford Motor Co.)(Case overview)
October 4, 2007... Article by Customs and International Trade Practice Group In a decision that could send shockwaves down the operations of every business taking advantage of NAFTA's preferential duty treatment, the Federal Court for the Western District of...

The Best Place To Combine Business And Leisure.
October 4, 2007... The Republic of Mauritius has developed into an international financial services centre of high repute. It offers multiple advantages to non-resident investors due, among other things, to its strategic position, good economic and political...

Profitability Monitor - 2007 Q2.
October 4, 2007... Our regular assessment of the current state of the profitability of British business and the economic factors influencing its prospects for the future, prepared by Roger Bootle, Economic Adviser to Deloitte. The rocketing rate of...

Foreign Investment Protection In Uruguay: Overview And The Botnia Case.
October 4, 2007... Article by Andres Dur n Hareau1 I. Introduction It is well known that one of the main variables considered by foreign investors, to make an investment decision in another country, is the quality of its legal framework, in particular...

The Bull Rips A Hole In The Matador's Cape: New Ninth Circuit Decision Limits Reach Of Section 502(b)(6)'s Landlord Cap.
October 4, 2007... Originally Posted in Cooley Godward Kronish LLP's In The (Red) Business Bankruptcy Blog, October 3, 2007 A commercial real estate lease often represents the largest single liability of many debtors. For retailers, which typically have...

Arbitration Deadlines Have Teeth.(Lloyd's U.S. v Argonaut Insurance Co.)
October 4, 2007... Insurers often think of arbitration proceedings as less formal than courtroom litigation. In its recent decision in Certain Underwriters at Lloyd's v. Argonaut Ins. Co.,1 the 7th U.S. Circuit Court of Appeals has made clear that, at least with...

For A Surprised Reinsurer, That First Step Can Be A Big One.
October 4, 2007... When a reinsurer discovers facts contrary to those it contemplated when making its reinsurance contract, the first step it makes to address the problem can be critical. Suppose a ceding insurer has specifically represented that the...

Florida To Develop Rule Requiring Extensive Disclosure To Viators In Viatical Settlement Transactions.
October 4, 2007... On August 24, 2007, the Florida Office of Insurance Regulation (OIR) published a notice that it intends to develop a new rule that would require viatical settlement providers and brokers to make detailed and comprehensive disclosures to viators...