Mondaq Business Briefing articles from September 2004

Mondaq Business Briefing archives from September 2004

OCC Further Clarifies Lending Preemption Regulation.(United States. Office of the Comptroller of the Currency)
September 1, 2004... The OCC issued a series of Interpretive Letters that further clarify the scope of its recent regulation (the "Preemption Regulation") (described in the January 13, 2004 Alert) concerning federal preemption of state lending laws (please click on...

Energy Updates - July 2004.
September 1, 2004... Edited by Paul Harricks Contents Innovative Suit Against Large American Power Companies For Carbon Dioxide Emissions Energy Demand Surges in Ontario Alberta Energy and Utilities Board Outlook Gowlings Delivers Keynote at...

Ice Cream Judgment - CFI Upholds Commission Decision.
September 1, 2004... On 23 October 2003, the European Court of First Instance (the "CFI") held that an exclusivity clause restricting ice-cream retailers' use of freezers supplied by Van den Bergh Foods in Ireland infringed EC competition law. FACTS Van...

DOL Provides "Safe Harbor" From Loss Of "White Collar" Exemptions Under The FLSA.(United States Department of Labor)(Fair Labor Standards Act)
September 1, 2004... The U.S. Department of Labor recently revised its regulations relating to the so-called "white collar" exemptions from the minimum wage and overtime requirements of the Fair Labor Standards Act ("FLSA"), including the exemptions for bona fide...

U.S. Supreme Court Tackles International Antitrust Issues.
September 1, 2004... As economic globalization marches on, one question that emerges repeatedly is how far the U.S. legal system can and should reach beyond its own borders. Answering that question has become particularly urgent in antitrust enforcement, as the...

Certain Antitrust Implications of Pre-Closing Restrictive Covenants.
September 1, 2004... Acquisition agreements typically contain covenants requiring the seller to operate the to-be-acquired business only in the ordinary course, consistent with past practice. Acquisition agreements also typically contain more specific covenants...

Executive Compensation: Director And Officer Liability Becomes Increasingly Complex.
September 1, 2004... The fallout from the collapse of major U.S. companies as a result of governance scandals spreads far and wide. Not surprisingly, one of the issues that immediately arose when these scandals broke was whether director and officer liability (D&O)...

Federal Circuit En Banc Rehearing Likely To Clarify Method For Claim Construction.
September 1, 2004... In what may lead to a clarifying opinion regarding patent claim construction, the U.S. Court of Appeals for the Federal Circuit agreed to rehear, en banc, an appeal previously decided by a three-judge panel. Phillips v. AWH Corporation, et al.,...

Mediation at a Crossroads.(Reprint)
September 1, 2004... Originally published June 2004 It seems likely that mediation is going to have an increasingly prominent role in clinical negligence claims.The Department for Constitutional Affairs (DCA) plans to make mediation much more difficult to...

Draft Charities Bill - Charities Act 2005 in the Making.(Reprint)
September 1, 2004... Originally published June 2004 Following our recent Newsflash with details of the Joint Committee that has been set up to scrutinise the Bill the draft Charities Bill was finally published on 27th May. In this article we give a brief...

IT Chief Bourgeois Leaves US Patent and Trademark Office.(Douglas Bourgeois)
September 2, 2004... By PatentCafe Staff On Friday September 3, Douglas Bourgeois, who joined the USPTO as its Chief Information Officer in May, 2001, will leave the Patent Office to become the director of the Interior Department's National Business Center....

SEC Proposes One-Year Delay in Acceleration of Periodic Report Filing Dates.(Securities and Exchange Commission)
September 2, 2004... in By Rodney H. Bell (Miami) and James M. Lurie (New York) On August 25, 2004, the SEC published a proposal to postpone for one year the final phase-in period for acceleration of the due dates of quarterly and annual reports by...

FTC Seeks Comment on Proposed Can-Spam Rules on "Primary Purpose".
September 2, 2004... By Ronald L. Plesser, James J. Halpert, Stuart Ingis and Alisa Bergman Originally published August 24, 2004 Contents FTC Seeks Comment on Proposed CAN-SPAM Rules on "Primary Purpose" FCC Issues Order on Wireless Spam The...

Biotech Functional Characterizations Fail Written Description Test Again.
September 2, 2004... Acknowledging that a structure-function relationship can provide adequate written description for claims to genetic material, the U.S. Court of Appeals for the Federal Circuit nevertheless held that a partial amino acid sequence failed to...

Privacy Briefing - August 2004.
September 2, 2004... Edited by Michael Power Contents B.C. to Legislate Protection from Patriot Act Big Companies Employing Snoopers for Staff Email Canada: Police May Not Fish for Evidence Italy: Civil Choice to Publish Mobile Numbers ...

Have You Given Notice?
September 2, 2004... Originally published Summer 2004 Insurance policies often require immediate notice of an incident that could lead to a claim, but this need not be regarded as a condition precedent or pre-condition. The idea is to let the insurer know that...

Commercial Commonhold Schemes.
September 2, 2004... Originally published August 2004 The Government has announced that Commonhold schemes can be set up from 27 September 2004. Developers will now be thinking about whether a Commonhold scheme will be suitable for their proposed...

CMS Proposed Rule to Establish the Medicare Modernization Act's Medicare Advantage Program.(Centers for Medicare and Medicaid Services)
September 2, 2004... I. Introduction On August 3, 2004, the Centers for Medicare and Medicaid Services ("CMS") published proposed regulations addressing certain Medicare proposals contained in the "Medicare Prescription Drug, Improvement, and Modernization Act...

Maintaining Growth in International Services.
September 2, 2004... Writing for European CEO, BFSB CEO & Executive Director Wendy C. Warren touts historic growth and increasing leadership in financial services, and firmly places The Bahamas amongst the world's premier international centres. She says the...

Immigration Law Client Alert - September 2004.
September 2, 2004... H-1B Cap Alert U.S. Citizenship and Immigration Services ("CIS") announced that, as of August 4, 2004, it had received 40,000 H-1B filings subject to the cap for fiscal year 2005 (October 1, 2004 to September 30, 2005). If filings continue...

Major Defense Turning Point Reached in Ad Valorem Property Tax Cases.
September 2, 2004... Texas - Last week, ChevronTexaco, ExxonMobil, Shell and other major oil and gas companies with properties in Texas reached a major turning point in their battle against claims from various taxing units across the state alleging fraud in ad...

USPTO PPAC Forms New E-Filing and E-Government Subcommittee.(United States Patent and Trademark Office, Public Patent Advisory Committee )
September 2, 2004... By PatentCafe Staff Rick D. Nydegger, Chairman of the USPTO's Public Patent Advisory Committee (PPAC) has announced the formation of a new E-Filing and E-Government Subcommittee to help advance the technology and process automation at the...

New 8-K Rules Now Effective.
September 2, 2004... By John T. Blatchford, Robyn B. Goldman and Jason K. Zachary The SEC's new Form 8-K rules went into effect on August 23, 2004. The new rules, which now require a Form 8-K to be filed within four business days of most reportable events,...

Infrastructure @ Gowlings.(Ontario Minister of Public Infrastructure Renewal Announces Discussion Paper for Growth in the Greater Golden Horseshoe)
September 3, 2004... Edited by David McFadden Contents Ontario Minister of Public Infrastructure Renewal Announces Discussion Paper for Growth in the Greater Golden Horseshoe Windsor Gateway Infrastructure Funding for Border Improvements RAV...

Governance Reform's Impact on M&A And Corporate Finance Deals.
September 3, 2004... By Todd B. Pfister, Edwin D. Mason and Gary Levinson After being in a slump for three years, the level of merger and acquisition (M&A) activity seems to be picking up as the U.S. economy improves. Today, however, with public companies - and...

Why And How to go Private.
September 3, 2004... By Patrick Daugherty, Timothy P. Hanley, Christopher C. McMahon and Peter C. Underwood Why And How To 'Go Private' Concerns over the high costs of complying with Sarbanes-Oxley (SOX) and other corporate governance reforms are causing an...

Anguilla Financial Services and Asia Pacific Offshore Institute (APOI) to Host Reception in Hong Kong.
September 3, 2004... Officials also to visit Shanghai to attend APOI's Asia Offshore Conference September 14-17 Shanghai, China - The Anguilla financial services industry will showcase its services to Hong Kong industry professionals at a cocktail reception on...

Japan's REITs Come of Age.(real estate investment trust)
September 3, 2004... While the official data on property values show that real estate prices and rents are continuing to decline, there is currently a lot of money--both foreign and domestic--looking for high yielding property, often to convert into a REIT (real...

Spilling The Beans On Cartels: A New Recipe For Dealing With The ACCC?
September 3, 2004... The Australian Competition and Consumer Commission (ACCC) has a new tool for fighting cartels--a leniency policy that offers significant incentives for corporations or individuals to 'blow the whistle' and cooperate with the competition...

Compensation for Refusal of a New Business Tenancy.(Reprint)
September 3, 2004... Originally published June 2004 Pursuant to section 30(1) of the Landlord and Tenant Act 1954, a tenant is entitled to compensation where a landlord opposes the grant a new tenancy in a section 25 notice or a counter-notice to a tenant's...

Directors Beware!(Reprint)
September 4, 2004... Originally published June 2004 The directors of a company are responsible for the management of the company's affairs and are subject to a range of legal obligations. A director who breaches his duties runs the risk of being disqualified...

Sex, Drugs and Breach of Confidence.
September 6, 2004... Key Points Australian law attempts to protect privacy through a variety of mechanisms, including defamation law and breach of confidence. The UK view of breach of confidence is that in certain circumstances the law recognises that the...

An Employer's Right to Protect the Privacy of its Employees.
September 6, 2004... Key Point Employers now have an alternative means to protect the privacy of their employees who might otherwise not have the resources individually to seek a remedy if their privacy is breached. The recent decision in Seven Network...

Revival of the Letter of Comfort.
September 6, 2004... Key Point A recent NSW decision has found that a letter of comfort was promissory in nature and binding. Synonymous with the mullet, Cold Chisel, Bondy and the supposedly misnamed letter of comfort, is there a 1980s revival looming?...

Stamp Duty Land Tax.
September 6, 2004... Originally published August 2004 Stamp duty land tax (SDLT) is still creating issues and planning opportunities for all parties in the Real Estate market. Changes to the regime continue to be made as the Revenue seeks to keep up with the...

ADR: An Idea the Time for Which Has Come!(Alternative Dispute Resolution)
September 6, 2004... "I am pained to observe that the judicial system in the country is almost on the verge of collapse. These are strong words I am using but it is with considerable anguish that I say so. Our judicial system is creaking under the weight of...

Enterprise Solution SYSTEMS And Their Forgotten legal Implications.
September 6, 2004... You feel at ease. Your company has made a great investment in technology and has achieved efficiency and important savings with its ERP (Enterprise Resource Planning) system. Now that your IT is to date, are you sure they fulfill the necessary...

How to Implement an In-House Legal "Up the Ladder" Reporting System.
September 6, 2004... By Arthur H. Bill, Susan Hackett, Aaron E. Hoffman, Jerry Okarma and David Sherbin Since the Sarbanes-Oxley Act (SOX) went into effect in 2002, many of its corporate governance provisions have revolutionized the way publicly held companies...

CSA Proposes Prospectus And Registration Exemption For Capital Accumulation Plans.(Canadian Standards Association)
September 6, 2004... Edited by Paul A. Dempsey The CSA has published for comment a proposed registration and prospectus exemption which is based on compliance with the guidelines for capital accumulation plans (CAPs) released by the Joint Forum of Financial...

Recognition of U.S. Bankruptcy Proceedings by Canadian Courts.
September 6, 2004... Presented at the 4th International Symposium on Bankruptcy, June 2004. [C]ourts must have regard to the need to do justice to the particular litigants who come before them as well as to the public interest in the efficient...

NYSE's Proposed Hybrid System - DIRECT+.(New York Stock Exchange Inc.)
September 6, 2004... The New York Stock Exchange ("NYSE" or the "Exchange") has submitted a rule filing (the "Filing") to the SEC relating to proposed modifications to its automatic execution system, NYSE DIRECT+[R] ("Direct+"), which the SEC has published for...

SEC Adopts Regulation SHO to Amend Short Sale Rules.(United States. Securities and Exchange Commission)
September 6, 2004... Regulation SHO. On June 23, 2004, the Securities and Exchange Commission ("SEC") adopted new Regulation SHO under the Securities Exchange Act of 1934 (the "Act") and amended several rules that relate to the short selling of securities.1...

Federal Circuit Clarifies Choice Of Law For Patent Antitrust Counterclaims.
September 6, 2004... For antitrust counterclaims in patent cases, the Federal Circuit held that its own law should be applied to analyzing issues relating to alleged abuses of the patent right, but that regional circuit law governs the remainder of the antitrust...

Known Operations Cannot be Deemed Intentionally Concealed Absent Evidence of Intent.
September 6, 2004... Addressing whether a well-known operation can be deemed intentionally concealed, absent evidence of intent, the U.S. Court of Appeals for the Federal Circuit reversed a district court's grant of summary judgment of patent invalidity that was...

A Case Study - Retail Electric Provider Bankruptcies.
September 7, 2004... By Diana Woodman and John Baumgartner Texas Commercial Energy (the "Company" or "TCE") filed for bankruptcy protection on March 6, 2003 in the Southern District of Texas following a sudden and dramatic rise in the price of wholesale...

Advertising & Marketing Bulletin - Freebies: They Can Cost More Than You Think.
September 7, 2004... Written by John Clifford and Melissa McBean, Student-at-Law Offering free products or services to attract customers is a common marketing strategy. E-businesses, in particular, often provide a product free of charge in exchange for an...

Casino Gambles on Wallace and Loses - "Slacker" Gets Three Months Pay!(Casino Rama )
September 7, 2004... The Concept of Bad Faith in the Manner of Dismissal In 1997, the Supreme Court of Canada introduced the concept of "bad faith" in the assessment of wrongful dismissal damages. The Court in Wallace v. Grain Growers Ltd. ruled that employees...

Daily Tax Update: Treasury and the IRS Issue Proposed Stapled Stock Regulations.(Internal Revenue Service)
September 7, 2004... WASHINGTON PHOENIX LOS ANGELES LONDON BRUSSELS THE DAILY TAX UPDATE WILL BE PUBLISHED ON A PERIODIC BASIS UNTIL CONGRESS RETURNS FROM ITS AUGUST RECESS ON SEPTEMBER 7. Today, the Treasury Department and the IRS issued proposed...

FDA Issues Final Rule Requiring Bar Codes.(Reprint)
September 7, 2004... Originally published June 2004 How will your company be affected? Background: On February 25, 2004, the Food and Drug Administration (FDA) announced new regulations requiring "bar codes" on most prescription drugs and certain...

Progressing Strides in Indian Trade Marks Law.
September 7, 2004... The Indian trade marks law and practice underwent radical transformation in the recent past. The Trade Marks Act, 1999 notified on September 15, 2003 brought in a variety of progressive changes. This note summarizes some of the important...

The Intellectual Property Appellate Board.
September 7, 2004... The establishment of the Intellectual Property Appellate Board (IPAB) marks the beginning of a new era in Intellectual Property Rights administration system in India. On September 15, 2003 the Trade Marks Act, 1999 was notified and the IPAB...

Summer 2004 Employment Case Law Round Up.
September 7, 2004... The last few months have seen an enormous amount of activity in the Court of Appeal and the House of Lords on employment issues. They have had the opportunity to give welcome clarity on several key issues that had been causing a great deal of...

The California Supreme Court Declines to Hold Back The Tide of Overtime Class Actions.
September 7, 2004... On August 26, 2004, the California Supreme Court released its eagerly awaited opinion in Sav-On Drug Stores, Inc. v. Superior Court, -- Cal.4th --, 2004 WL 1902370 (2004). For several years now, California has been the battleground over a...

New Approaches to Mental Health.(Reprint)
September 7, 2004... Orignally published July 2004 There have recently been announcements of new approaches in different aspects of Mental Health. Mental Health Act Commission The Mental Health Act Commission have announced that they are to carry out...

Artificial Infringement Under Hatch-Waxman Act Does Not Constitute Willfulness.
September 7, 2004... Addressing the issue of artificial infringement under the Hatch-Waxman (H-W) Act, the U.S. Court of Appeals for the Federal Circuit held that filing an Abbreviated New Drug Application (ANDA) cannot constitute willful infringement. Glaxo Group...

Piggyback Ex Parte Reexaminations Are Clipped by The USPTO.(United States Patent and Trademark Office )
September 7, 2004... The U. S. Patent and Trademark Office (USPTO) now instructs examiners that an ex parte reexamination based on a subsequent concurrent reexamination request which relies on the same prior art as an on going ex parte reexamination should be...

Prior Registration of GASPAR'S ALE Trademark Bars Registration of JOSE GASPAR GOLD as a Trademark For Tequila.(E.I. DuPont de Nemours & Co.)
September 7, 2004... When the goods listed in a trademark application are sufficiently similar to those in a prior registration, the marks need not be identical for the application to be denied registration. The Federal Circuit, in a recent case upholding a...

The Hollinger Ruling - A BVI Perspective.(International Business Companies Act)
September 7, 2004... 1. Introduction Given that the BVI's International Business Companies Act (Cap 291) (the "BVI Act") mirrors a number of the provisions of the Delaware General Corporation Law ("DGCL")1 the decision repays study by all who advise on or use...

Financial Services Industry Excellence.
September 7, 2004... Financial Centre Focus The Bahamas Financial Services Board (BFSB) has launched the 4th year of its "Financial Centre Focus" (FCF) programme. This initiative was developed in 2001 to profile the industry and to co-ordinate a series of...

From Murder And Madness to Mediation.(Reprint)
September 7, 2004... Previously published in the European Lawyer July/August 2004 History has traced a long path of horror and torture before reaching today's rather gentler systems of dispute resolution. Patricia Martin takes an irreverent look at the past...

Pharmacapsules - July 2004.
September 7, 2004... Edited by Adrienne Blanchard and Jennifer Wilkie Contents Confidential Information Exempt From Disclosure Under Access To Information Act Deadline For Natural Health Products Passes U.S. Seeks To Reduce Cheap Drugs From...

Economic Trends.
September 7, 2004... The Central Bank of the Bahamas has released an update on recent economic developments and prospects, noting that the Bahamian economy expanded during the first half of 2004 with the momentum expected to continue through 2005. The...

Attride-Stirling & Woloniecki and Clifford Chance invite you to a drinks reception to mark the publication of The Law of Reinsurance 2nd Edition.
September 7, 2004... Attride-Stirling & Woloniecki and Clifford Chance invite you to a drinks reception to mark the publication by Sweet & Maxwell of "The Law of Reinsurance, 2nd Edition" by Terry O'Neill and Jan Woloniecki on Thursday 23 September, 2004...

Commercial Litigation NetLetter- 02 September 2004.
September 7, 2004... HIGHLIGHTS Under Ontario law, where a pension plan is partially wound up, actuarial surplus must be distributed on the effective date of the partial wind up. Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), [2004]...

Be Careful What You Wish For: A Canadian Perspective on Direct-to-Consumer Advertising And The 'Learned Intermediary' Rule.(law about the intimation of side effects of drugs by prescription drug manufacturers to physicians)
September 7, 2004... By Barry Leon, Esq., and Cynthia Tape, Esq.* Published in Andrews Litigation Reporter: Drug Recall, June 2004. "Our medical-legal jurisprudence is based on images of health care that no longer exist." So begins the judgment of the...

Directors' Fiduciary And Statutory Duties.
September 7, 2004... Every director of a corporation, regardless of whether it is a publicly traded corporation or a closely held private corporation, is subject to a common law fiduciary duty to act loyally and in the best interests of the corporation. In...

Personal And Corporate Environmental Liability.(corporate officers-offences)
September 7, 2004... All Canadian federal and provincial environmental legislation is backed up with stiff penalties, including jail terms, for those persons who contravene their regulatory requirements. Corporate officers can be held liable for the company's...

Statutory Sources Of Liability.(remittance obligations-analysis)
September 7, 2004... Directors of corporations (whether federal, provincial, public, private or non-profit) are responsible for supervising the management of the affairs of the corporation. In the course of carrying out those responsibilities, directors are exposed...

Monsanto - What Are the Implications?(Supreme Court of Canada-decision on subsection 70(6) of the Ontario Pension Benefits Act)
September 7, 2004... This article will discuss the implications of the Monsanto decision for pension plan sponsors, trustees, custodians and others in the pension industry, and highlight some of the most pertinent issues, including: What did the Supreme Court of...

Prevention of Money Laundering.
September 7, 2004... Introduction Money Laundering, has been a great menace to the world economy particularly in this heightened stage of terrorism and cyber crime. A large number of criminal activities are focused to generate money for the perpetrators. Such...

Introduction of Preferred Shares in French Law.
September 7, 2004... The French government took advantage of the Ordonnance on securities reform of June 24, 2004 to introduce a new category of securities called actions de preference, or preferred shares. This type of instrument, now valid under French law, is a...

An Insight on Copyright, Geographical Indications and Confidential Information Laws in India.
September 7, 2004... COPYRIGHT The Legislation The provisions pertaining to Copyrights and their protection in India are governed by the Copyright Act, 1957. Copyright exists in expression of an idea and it is not a right in the novelty of an idea....

Reform of European Pharmaceutical Legislation.
September 7, 2004... Originally published June 2004 An Overview of Recent Changes in the Licensing Procedure for Medicinal Products in the EU It was only recently that the process of reforming European pharmaceutical legislation within the framework of...

EU and Interbrew Settle Over Practices Towards Belgian Beer Wholesale.(Reprint)
September 8, 2004... Originally published June 2004 On 30 April 2004 the European Commission announced that it had closed its investigation into Interbrew's alleged anti-competitive practices in the Belgian wholesale beer market. The Commission's probe, which...

SEC Issues Adopting Release for Rule 12b-1 Prohibition on Mutual Fund Directed Brokerage.(United States. Securities and Exchange Commission)
September 8, 2004... The SEC issued the release (the "Adopting Release") formally adopting an amendment (the "Amendment") to Rule 12b-1 under the Investment Company Act of 1940, as amended (the "1940 Act"), prohibiting consideration of a broker-dealer's efforts in...

Overseas Workers and Tribunal Claims.(Reprint)
September 8, 2004... Originally published September 2004 If workers are employed abroad by a British company, can they make tribunal claims in Britain? As companies expand overseas this question is becoming increasingly important. Unfortunately changes to the...

Focus on Dispute Resolution: the New Law.(Reprint)
September 8, 2004... Originally published August 2004 One major aim of the Employment Act 2002 was to reduce the number of Employment Tribunal applications by obliging employers and employees to try to resolve disputes internally through domestic procedures...

Media Relations in a Corporate Crisis.
September 8, 2004... By Thomas F. Carlucci and Myron L. Marlin It was a fear expressed over and over by panelists throughout Foley & Lardner's 2004 National Directors Institute (NDI) - "You don't want to read about it in the paper." The "it" referred to...

La Automatizacion De Sistemas y sus Olvidadas Implicaciones Legales.
September 8, 2004... Usted esta tranquilo. Su empresa ha hecho una gran inversion en tecnologia, con su ERP ha logrado eficiencias y ahorros importantes. Ahora que sus sistemas est n sistematizados esta seguro cumplen con los requisitos y le protegen de posibles...

Soft Center Patent Claims Not Solidly Construed by District Court.
September 8, 2004... Addressing the issue of whether the claim language "containing a mixture of lipid and solid ingredients" limits the soft inner component of a claimed dual textured pet food product, solely to lipid and solid ingredients, the U.S. Court of...

Proof of Joint Inventorship of Issued Patent Must be Clear And Convincing.
September 8, 2004... The Federal Circuit, reversed a district court's entry of judgment ordering the U.S. Patent and Trademark Office (USPTO) to add one of Eli Lilly and Company's (Lilly) scientists as an inventor on an Aradigm Corporation (Aradigm), patent, which...

No Source Code, No Copying.(copyright infringement)
September 8, 2004... The U.S. Court of Appeals for the Fifth Circuit affirmed the district court's dismissal of General Universal Systems, Inc.'s (GUS) claims of copyright infringement citing GUS's failure to produce tangible evidence to support its motion for...

Daily Tax Update: Congress Returns From August Recess.
September 8, 2004... WASHINGTON PHOENIX LOS ANGELES LONDON BRUSSELS Today, the House and Senate reconvene and the future of two unfinished tax bills (expiring tax cuts bill and export tax repeal bill) still remains uncertain due to election year time...

Communications Law Bulletin - July/August 2004 - Part 1.
September 8, 2004... The Month in Brief The summer months saw important developments involving many hot issues in the communications industry. This issue of our bulletin reports on a wide range of topics, including a long-awaited industry proposal to reform...