USA

Banking

FED issues final, interim, and proposed residential mortgage loan rules
Ballard Spahr LLP August 31 2010
A series of final, interim, and proposed amendments to Regulation Z (Truth in Lending) were issued by the Federal Reserve Board on August 16, 2010, and contain new requirements for closed-end mortgage loans, open-end home equity lines of credit, and reverse mortgage loans.

UK bank levy consultation document published
Cadwalader Wickersham & Taft LLP August 27 2010
On 13 July 2010, HM Treasury published a consultation document on the scope and detail of the proposed UK bank levy (the "Levy") which was announced in the UK Emergency Budget on 22 June 2010.

Florida federal court dismisses Payment-Option ARM complaint
Locke Lord Bissell & Liddell LLP August 26 2010
Over the last several years, dozens (if not hundreds) of class action complaints have been filed challenging certain mortgage loan products known as "Payment-Option ARM" loans.

Dodd-Frank Wall Street Reform and Consumer Protection Act
Jackson Walker LLP August 26 2010
On July 21, 2010, President Obama signed the "Dodd-Frank Wall Street Reform and Consumer Protection Act" into law.

Federal Reserve to sponsor national neighborhood stabilization summit
Alston & Bird LLP August 26 2010
Today, the Federal Reserve announced that it will sponsor a national summit to “discuss methods and resources for encouraging neighborhood stabilization in the aftermath of the U.S. home mortgage foreclosure crisis.”

Financial regulatory reform - Bureau of Consumer Financial Protection
Sonnenschein Nath & Rosenthal LLP August 26 2010
On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Reform Act").

Creation of the Consumer Financial Protection Bureau
Duane Morris LLP August 24 2010
Title X of the Act is known as the "Consumer Financial Protection Act of 2010."

Consumer Financial Protection Act of 2010 institutes first federal regulation of debit card interchange fees
Duane Morris LLP August 24 2010
Section 1075 of Title X of the Act, is also known as the "Durbin amendment."

Capital requirements for financial institutions
Duane Morris LLP August 24 2010
Title I of the Act, designated the "Financial Stability Act of 2010" (the "Financial Stability Act") creates the Financial Stability Oversight Council (the "Council") and gives broad authority to the appropriate federal banking agencies to mandate minimum leverage capital requirements and risk-based capital requirements for insured depository institutions, depository institution holding companies and nonbank financial companies supervised by the Board of Governors of the Federal Reserve System (the "Board").

U.S. financial reform: the Volcker Rule and improvements in the regulation of banking entities and nonbank financial companies supervised by the Board of Governors of the Federal Reserve System
Duane Morris LLP August 24 2010
Section 619 of the Act, also known as the "Volcker Rule," will limit proprietary trading, defined below, by U.S. banks and their affiliates ("Banking Entities") and nonbank financial companies supervised by the Board of Governors of the Federal Reserve System ("Board").

9th Cir says no mandatory arbitration of CROA claims, splits w/ 3rd and 11th Cirs
Kahrl Wutscher LLP August 19 2010
The U.S. Court of Appeals for the Ninth Circuit recently affirmed the district court's holding that a mandatory arbitration clause in a credit card agreement was void, holding that the federal Credit Repair Organization Act ("CROA"), 15 U.S.C. § 1679, et seq., prohibits provisions that purport to waive a consumer's right to sue in court for CROA violations.

Illinois enacts elder exploitation monitoring law
Kahrl Wutscher LLP July 25 2010
Illinois Governor Pat Quinn recently signed into law a bill intended to protect Illinois' seniors from financial exploitation, through monitoring by regulated financial institutions.

Capital Markets

SEC enacts amendments facilitating shareholder nominations for director
Benesch Friedlander Coplan & Aronoff LLP August 31 2010
On August 25, 2010, the Securities and Exchange Commission voted 3-2 (along party lines) to approve rules that will make it easier for shareholders to nominate directors of public companies.

SEC adopts new rules mandating shareholder access to proxy statements
Alston & Bird LLP August 31 2010
On August 25, 2010, the Securities and Exchange Commission (SEC) adopted, by a vote of 3-2, new rules that give shareholders unprecedented access to an issuer's proxy statement.

SEC adopts proxy access rules
Baker Donelson Bearman Caldwell & Berkowitz PC August 30 2010
On August 25, 2010, in a 3-to-2 vote by the SEC Commissioners, the SEC adopted changes to the federal proxy rules facilitating the rights of shareholders of public companies in the process of nominating and electing members to their companies' boards of directors.

Blue Coat Systems Inc., its former executives, and Ernst & Young LLP settle derivative litigation over stock option grants
Orrick Herrington & Sutcliffe LLP August 27 2010
On August 17, 2010, Blue Coat Systems Inc., Blue Coat's former executives and Ernst & Young LLP settled two shareholder derivative lawsuits: In re Blue Coat Systems, Inc. Derivative Litigation, Case No. 06-cv-03484-JF, filed on August 6, 2006 in the Northern District of California (Complaint) and In re Blue Coat Systems, Inc. Derivative Litigation, Case No. 1:06-cv-064854, filed on May 5, 2005 in the Superior Court of the State of California for the County of Santa Clara.

Third Circuit holds that mixed present/future statements are protected by Reform Act safe harbor
Sheppard Mullin Richter & Hampton LLP August 27 2010
In In re Aetna, Inc Securities Litigation, No 09-2970, 2010 WL 3156560 (3d Cir Aug 11, 2010), the United States Court of Appeals for the Third Circuit held that certain allegedly misleading statements regarding the pricing of insurance premiums by a large health insurance company were protected under the safe harbor provision of the Private Securities Litigation Reform Act of 1995.

SEC adopts mandatory proxy access rule for shareholder director nominations -- applicable for 2011 proxy season
Sheppard Mullin Richter & Hampton LLP August 27 2010
On August 25, 2010, the Securities and Exchange Commission voted 3-to-2 along party lines to adopt a controversial proxy access regime to facilitate shareholders' ability to nominate a limited number of candidates for election as directors.

SEC adopts final rules on proxy access and facilitation of nominations of directors by shareholders
Hunton & Williams LLP August 26 2010
On August 25, 2010, the Securities and Exchange Commission ("SEC") adopted final rules to facilitate nominations of directors by shareholders, including so-called "proxy access" rules.

SEC approves final proxy access rules
Paul Weiss Rifkind Wharton & Garrison LLP August 25 2010
At today's open meeting, the Securities and Exchange Commission, in a 3-2 vote split along party lines, approved final rules that create, among other things, a federally mandated procedure to allow shareholders access to a company's proxy materials for the purpose of nominating a short-slate of directors for election in opposition to the nominees proposed by the board.

U.S. financial reform: Municipal Securities
Duane Morris LLP August 24 2010
This Alert summarizes Subtitle H of Title IX, designated "Municipal Securities," of the Act.

Registration of advisors to private investment funds and pools, and of small advisory firms
Duane Morris LLP August 24 2010
Title IV of the Act codifies the "Private Fund Investment Advisers Registration Act of 2010" ("Title IV"), a bill aimed at the regulation of private investment funds, including hedge funds and private equity funds.

New whistleblower incentives and protections, and more enforcement expected
Duane Morris LLP August 24 2010
The Act includes "bounty hunter" provisions to increase the voluntary reporting of securities and commodities violations.

Corporate Finance/M&A

The top five real estate traps in M&A transactions
McDermott Will & Emery August 31 2010
In the myriad M&A transactions, for the technology company, hospital chain, pharmaceutical company or consulting firm, the M&A professional's thoughts turn to supply contracts, union and pension obligations, intellectual property, key executives, debt levels and, of course, earnings.

The top five intellectual property traps in M&A transactions
McDermott Will & Emery August 31 2010
In M&A transactions, many lawyers assume that intellectual property (IP) rights will automatically transfer with the purchase and that IP issues can be cured by general representations and warranties.

The top five employee benefits and executive compensation traps in M&A transactions
McDermott Will & Emery August 31 2010
In M&A transactions, many lawyers (and clients) assume that employee benefits issues are tangential to the overall business deal and will "work themselves out" after the deal closes.

The top five tax traps in M&A transactions
McDermott Will & Emery August 31 2010
The tax consequences of acquisition and disposition transactions can dramatically impact deal value.

Federal Trade Commission proposes to expand information provided with HSR premerger notification
Jones Day August 25 2010
The Federal Trade Commission has proposed amendments to the rules governing what information parties to mergers or acquisitions must report to the FTC and Department of Justice under the Hart-Scott-Rodino (HSR) Act.

Corporate Tax

IRS issues administrative guidance on new reporting and withholding rules for cross-border payments
Sonnenschein Nath & Rosenthal LLP August 31 2010
On March 18, 2010, President Obama signed the Hiring Incentives to Restore Employment Act of 2010.

The top five tax traps in M&A transactions
McDermott Will & Emery August 31 2010
The tax consequences of acquisition and disposition transactions can dramatically impact deal value.

Company self-audits help avoid § 409a penalties
Mayer Brown LLP August 27 2010
Although companies are operating under severe budget and resource constraints, many have concluded that it is both worthwhile and cost-effective to engage in a self-audit of the administration of their non-qualified deferred compensation arrangements to ensure compliance with section 409A of the US Internal Revenue Code.

New York's False Claims Act now equals or exceeds federal fraud law - False state tax returns are now privately enforceable under state FCA
Fried Frank Harris Shriver & Jacobson LLP August 26 2010
Effective tomorrow, New York's False Claims Act becomes one of the strongest state laws of its kind in the country, even exceeding the federal FCA in several respects.

Significant revisions to US international tax rules
Mayer Brown LLP August 25 2010
The Education Jobs and Medicaid Assistance Act of 2010 (Pub. L. No. 111-226) (the “Act”) became law on August 10, 2010.

Tiered natural gas tax discussed in Harrisburg; no clear direction yet
Duane Morris LLP August 20 2010
A coalition of natural gas drillers in Pennsylvania is proposing the General Assembly adopt a tiered severance tax rate, which would result in lower rates for newer and lower producing wells.

E-commerce

A service provider is not required to be an investigator: service provider duties under the safe harbor provisions of the Digital Millennium Copyright Act
Squire Sanders & Dempsey LLP August 31 2010
Google and its April Fools' Day Joke were showcased in our Spring 2010 Intellectual Property Update.

Keyword advertising: can you really protect your brand and revenue in cyberspace?
Squire Sanders & Dempsey LLP August 31 2010
The Internet has revolutionized how businesses advertise.

Second Circuit exercises personal jurisdiction based on one counterfeit sale in New York
Townsend and Townsend and Crew LLP August 27 2010
The Second Circuit has confirmed that trademark owners need not chase infringers to their home jurisdictions to get relief.

Company settles FTC charges over misleading endorsements
Kelley Drye & Warren LLP August 26 2010
A public relations agency hired by a video game developer agreed to settle FTC charges that it engaged in deceptive advertising by having employees pose as independent consumers and post favorable reviews of the games.

Information Technology

Connecticut Insurance Department issues new data breach notification requirements
Edwards Angell Palmer & Dodge August 31 2010
The Connecticut Insurance Department ("Department") issued Bulletin IC-25 (the "Bulletin"), dated August 18, 2010, to require all entities doing business in Connecticut that are licensed by or registered with the Department to notify the Department of any information security incident.

RACs to Begin Medical Necessity Reviews
Baird Holm LLP August 31 2010
CMS' New Issue Review Board recently approved the first "medical necessity review" audits under the permanent RAC program.

Proposed revisions to the notice of privacy practices under HITECH: do we have to give our NPP to every patient again?
Baird Holm LLP August 31 2010
We have heard from many of you that the AHA and others are disseminating information that suggests that health care providers will be required to hand out its revised Notice of Privacy Practices (NPP) again (and obtain another acknowledgement) once changes are made to the NPP as required by the proposed rules implementing the HITECH Act.

Insolvency & Restructuring

Recent bankruptcy decisions demonstrate importance of structuring considerations in financings of public-private partnerships
Mayer Brown LLP August 26 2010
The recent bankruptcy filings by infrastructure companies Connector 2000 Association Inc., South Bay Expressway, L.P., California Transportation Ventures, Inc., and the Las Vegas Monorail Company have tested the structures utilized to implement public-private partnerships (P3s) in the United States in several respects.

Dead zone? Direct claims by creditors of a California corporation may not lie against management based on management's allegedly shifting duties when corporation is in the zone of insolvency or even insolvent
Sheppard Mullin Richter & Hampton LLP August 25 2010
The California Court of Appeal recently rejected the argument that directors and officers owe fiduciary duties to the company's creditors when the company is in the so-called "zone of insolvency," or is even clearly insolvent.

Decision in Factory 2-U bankruptcy addresses subject matter jurisdiction of court
Fox Rothschild LLP August 24 2010
Earlier this month, I submitted a post looking at an Opinion in the Eclipse Aviation bankruptcy.

Intellectual Property

Princo Corporation v. International Trade Commission
Fitzpatrick, Cella, Harper & Scinto August 31 2010
The Federal Circuit today issued its en banc decision in Princo Corporation v. International Trade Commission, which narrows the scope of the patent misuse doctrine applied by the Federal Circuit in the patent licensing context.

Keyword advertising: can you really protect your brand and revenue in cyberspace?
Squire Sanders & Dempsey LLP August 31 2010
The Internet has revolutionized how businesses advertise.

Masters Software, Inc. v. Discovery Commc’ns, Inc
Finnegan Henderson Farabow Garrett & Dunner LLP August 30 2010
The Western District of Washington issued a preliminary injunction against defendant Discovery Communications, prohibiting it from using CAKE BOSS as the title of its reality television program about baker Buddy Valastro and his bakery in New Jersey beyond the third season.

Functional chair is not entitled to trademark registration
Kelley Drye & Warren LLP August 27 2010
Greenwich Industries has been manufacturing standard folding chairs for more than 80 years.

USPTO updates § 101 examination guidelines
McDermott Will & Emery August 27 2010
In response to the Bilski decision recently rendered by the Supreme Court of the United States (see IP Update, Vol. 13, No. 7), the U.S. Patent and Trademark Office (USPTO) published interim guidelines for examination of patent claims under § 101 in the Federal Register.

Extraterritorial application of the Lanham Act is California Dreamin’
McDermott Will & Emery August 27 2010
The U.S. Court of Appeals for the Ninth Circuit intervened in a battle between two “Beach Boys” involving Lanham Act claims and California right of publicity claims, concluding in a case in which the plaintiff alleged conduct occurring in Great Britain affected U.S. commerce.

Quickie divorce decree resolves patent ownership and standing issue
McDermott Will & Emery August 27 2010
The U.S. Court of Appeals for the Federal Circuit gave preclusive effect to a California divorce decree adjudicating ownership rights to the patents-in-suit and affirmed the district court’s denial of a defendant’s motion to dismiss the case for lack of standing.

Double patenting sinks Gemzar® method of use claims
McDermott Will & Emery August 27 2010
Affirming the district court, the U.S. Court of Appeals for the Federal Circuit reiterated its precedent that “a claim to a method of using a composition is not patentably distinct from an earlier claim to the identical composition in a patent disclosing the identical use” and confirmed that its holding “extends to any and all such uses disclosed in the specification of the earlier patent.”

Fourth Circuit strengthens copyright protection for furniture
Womble Carlyle Sandridge & Rice PLLC August 26 2010
On August 20, 2010, the Fourth Circuit Court of Appeals affirmed the Middle District of North Carolina's rulings on liability and damages against Collezione Europa.

Rambus appeals to Federal Circuit following Commission's determination of patent invalidity
McDermott Will & Emery August 26 2010
On August 19, 2010, complainant Rambus, Inc. filed a notice of appeal with the Federal Circuit challenging the Commission’s determination in Inv. No. 337-TA-661, Certain Semiconductor Chips Having Synchronous Dynamic Random Access Memory Controllers and Products Containing Same.

ALJ Charneski sets prehearing conference date in Inv. No. 337-TA-602
McDermott Will & Emery August 26 2010
On August 25, ALJ Charneski issued an order setting September 8, 2010 as the date for a prehearing conference in Inv. No. 337-TA-602, Certain GPS Devices and Products Containing Same.

New 337 complaint concerning Certain Components for Installation of Marine Autopilots with GPS or IMU
McDermott Will & Emery August 26 2010
On August 26, 2010, American GNC filed a letter requesting that the Commission conduct an investigation under section 337 regarding Certain Components for Installation of Marine Autopilots with GPS or IMU.

ALJ Charneski denies Nokia's third motion to show cause in Inv. No. 337-TA-701
McDermott Will & Emery August 26 2010
In Inv. No. 337-TA-701, Certain Electronic Products, Including Mobile Phones, Portable Music Players, and Computers, ALJ Charneski issued an order denying complainants Nokia Corp. and Nokia Inc.'s motion seeking an order requiring respondent Apple, Inc. to show cause why it should not be sanctioned for failing to comply with orders relating to Apple's production of source code files and other documentation relating to Nokia's infringement claims of U.S. Patent No. 6,073,036.

Jules Jordan Video, Inc. v. 144942 Canada Inc
Loeb & Loeb LLP August 25 2010
Ninth Circuit holds that adult filmmaker’s right of publicity claim under California state law is preempted by the federal Copyright Act and that the district court erred in entering judgment as a matter of law that plaintiff employee lacked standing to sue for infringement under the “work for hire” doctrine where plaintiff employer and plaintiff employee were one and the same.

Federal judge denies Everest Gaming ’s injunction bid for WSOP 2010
Lewis and Roca LLP August 24 2010
On August 20, 2010, Nevada federal district Judge James Mahan denied Everest Gaming Limited's motion for a preliminary injunction to stop Harrah's Interactive Entertainment, Inc’s continued use of the EVEREST POKER trademark in connection with the 2010 World Series of Poker.

CAFC Weekly-July 30, 2010
Burns & Levinson LLP August 24 2010
There were only two precedential opinions handed down during the week ending July 30th.

Fourth Circuit affirms: ornate furniture more than just a chair to sit in
Williams Mullen August 23 2010
The Fourth Circuit affirms the district court's decision in a six-year battle in Universal Furniture International, Incorporated("Universal") v. Collezione Europa USA, Incorporated ("Collezione"), Nos. 07-2180, 09-1437 (4th Cir. 2010).

Litigation

Prevailing defendant entitled to fee award unrelated to claims seeking unpaid wages
Barger & Wolen LLP September 1 2010
In Kirby v Immoos Fire Protection Inc, 2010 DJDAR 11569 (2010) the Third Appellate District of the California Court of Appeal decided an appeal challenging an award of attorneys fees to an employer who successfully defended against allegations of labor violations by two employees.

Keyword advertising: can you really protect your brand and revenue in cyberspace?
Squire Sanders & Dempsey LLP August 31 2010
The Internet has revolutionized how businesses advertise.

Supreme Court to rule on standard to recover benefits under ERISA when terms conflict
Baker & McKenzie August 31 2010
The United States Supreme Court may finally resolve a conflict among the United States Circuit Courts of Appeal on the standard to be applied when a plan participant seeks recovery under an ERISA plan and the terms of a Summary Plan Description ("SPD") or Summary of Material Modifications ("SMM") conflict with the express terms of the plan.

Supervisor's statements may entitle employee to FMLA
Franczek Radelet PC August 31 2010
To establish a claim of interference with rights under the FMLA, an employee must ordinarily demonstrate that he or she was entitled to FMLA leave.

Privilege issues
Dorsey & Whitney LLP August 30 2010
A class action discrimination lawsuit was filed against our company.

Arbitration agreements should identify administering institution as a result of New York appellate court ruling
Mayer Brown LLP August 30 2010
A New York state appellate court has ruled that a contract clause calling for arbitration "in accordance with the commercial rules of the American Arbitration Association" is insufficient to provide that the arbitration will be administered by the AAA.

Court sends contract claim back for recalculation of damages
Kelley Drye & Warren LLP August 30 2010
In preparation for a Martha Stewart promotion, Macy's solicited bids for the furniture required to create the promotion settings and its installation.

Ninth Circuit: Endangered Species Act does not prohibit “take” of endangered plant species in privately owned wetlands
Alston & Bird LLP August 27 2010
On August 25, 2010, the US Court of Appeals for the Ninth Circuit ruled in Northern California River Watch v Wilcox (Case No 08-15780) that privately owned wetlands adjacent to navigable waters of the United States do not qualify as "areas under Federal jurisdiction" for purposes of the Endangered Species Act.

More difficult to challenge class allegations at pleading stage in wage hour cases
Seyfarth Shaw LLP August 27 2010
Many wage and hour claims in California are brought as class actions.

"Officer-Shareholder" exclusion in crime policy bars coverage for embezzlement scheme
Wiley Rein LLP August 27 2010
A U.S. District Court in Missouri, applying Missouri law, has held that an exclusion in a crime policy, barring coverage for any claim relating to the wrongful acts of an “Officer-Shareholder, whether acting alone or in collusion with others,” applied to a claim alleging that an employee assisted and independently profited from the insureds’ former president’s embezzlement scheme.

National Forest Management Act/NEPA: ban on old growth logging reversed, Forest Service found in compliance with law
Shook Hardy & Bacon LLP August 27 2010
A split Ninth Circuit Court of Appeals panel has reversed a district court injunction that halted a U.S. Forest Service (FS) plan for logging in an old growth forest area in Oregon.

Fiduciaries did not breach duty of prudence by failing to divest investments in company shares
Katten Muchin Rosenman LLP August 27 2010
Plaintiffs, former employees of two energy providers, brought a consolidated class action, alleging that the fiduciaries of the companies' employee savings plans breached their fiduciary duties under the Employee Retirement Income Security Act by maintaining the savings plans' significant investment in stock of one of the companies, Constellation Energy Group, Inc.

Administrative Procedure Act/RCRA: Tenth Circuit rules EPA may revise tentative interpretation of regulation without rulemaking
Shook Hardy & Bacon LLP August 27 2010
The Tenth Circuit Court of Appeals has determined that EPA can revise a tentative interpretation governing the handling of magnesium waste without conducting a formal rulemaking.

Functional chair is not entitled to trademark registration
Kelley Drye & Warren LLP August 27 2010
Greenwich Industries has been manufacturing standard folding chairs for more than 80 years.

No private cause of action against employers for taking a dip in the tip pool
Hunton & Williams LLP August 27 2010
Section 351 of California's Labor Code prohibits employers from taking any gratuity patrons leave for their employees, and provides that such gratuity is "the sole property of the employee or employees to whom it was paid, given, or left for."

Stormwater: federal appeals court rules stormwater runoff from logging roads is point-source discharge
Shook Hardy & Bacon LLP August 27 2010
According to the Ninth Circuit Court of Appeals, discharges from systems of ditches, culverts, and channels that receive stormwater runoff from two logging roads in Oregon's Tillamook State Forest are point-source discharges and thus require CWA discharge permits.

Pregnant welder sues employer for discrimination
Roetzel & Andress August 27 2010
On August 10, 2010, the Sixth Circuit Court of Appeals issued its decision in Spees v. James Marine, Inc., which affirmed summary judgment in favor of the employer in part.

Court refuses to stay discovery against insureds in coverage action
Wiley Rein LLP August 27 2010
The United States District Court for the Southern District of Texas, applying Texas law, refused to stay discovery issued by insurers in a coverage proceeding sought to establish whether the insureds had "in fact" engaged in money laundering.

Court approves $50 million settlement of claims against bankrupt diacetyl defendant
Shook Hardy & Bacon LLP August 27 2010
A New York bankruptcy court will reportedly allow Chemtura Corp. to resolve 90 percent of the respiratory disease claims pending against it for $50 million, or one-third of the $150 million sought by factory workers allegedly exposed to the popcorn-flavoring ingredient diacetyl.

Florida FLSA lawsuits on the rise
Roetzel & Andress August 27 2010
Since 2004, there has been a 77% increase in the number of lawsuits related to wage and hour disputes.

New trial ordered on $32m in damages against KPMG LLP
Orrick Herrington & Sutcliffe LLP August 27 2010
On August 26, 2010, the Superior Court of New Jersey Appellate Division affirmed a jury's verdict holding KPMG LLP liable for malpractice and negligent misrepresentations.

Uncorroborated testimony sufficient to get to jury trial
Greenberg Traurig LLP August 27 2010
A new decision from the U.S. Court of Appeals for the 7th Circuit provides a stark reminder to employers of the ease with which a former employee can get a lawsuit before a jury.

Eighth Circuit Court of Appeals curtails Clean Air Act citizen suits in Sierra Club v. Otter Tail Power Co
Alston & Bird LLP August 27 2010
On August 12th, the 8th Circuit Court of Appeals issued a decision (Sierra Club v Otter Tail Power Company, et al., 09-2842) that curtails citizen suit enforcement actions brought under the Clean Air Act.

Air/enforcement: US enforcement action amended, alleged violation of general duty clause added
Shook Hardy & Bacon LLP August 27 2010
The United States has reportedly amended its complaint in an enforcement action against the owners and operators of a Danvers, Massachusetts, inks and paint products plant that exploded in 2006, adding a charge of violation of the Clean Air Act's (CAA's) general duty clause.

Executive temporary injunction against new employment may be needed to prevent “likely” disclosure
McDermott Will & Emery August 27 2010
The U.S. Court of Appeals for the Third Circuit affirmed a preliminary injunction barring a senior bakery executive from beginning employment with a competitor, finding that the “likely” disclosure of bakery’s trade secrets to the new employer was sufficient harm to support the injunction.

California court finds employers may be liable for wrongful termination when honoring competitors' non-compete agreements
Ford & Harrison LLP August 26 2010
A recent decision by the California Court of Appeals, finding an employer's decision to honor a competitor's non-compete agreement tantamount to a violation of California Business and Professions Code section 16600, thus violating public policy, underscores the Catch-22 faced by employers when hiring employees subject to covenants not to compete.

A tale of two cases: the extent to which a New Jersey trial court disregarded a Florida appellate court’s decision and the continued viability of the learned intermediary doctrine in New Jersey
Sills Cummis & Gross PC August 26 2010
Can a New Jersey trial court, applying the law of another jurisdiction, disregard an intermediate appellate decision from that other jurisdiction that is directly on point?

Sierra Club challenges RUS lien accommodation regulation
Sutherland Asbill & Brennan LLP August 26 2010
The Sierra Club has broadened its campaign against approvals granted by the Rural Utilities Service (RUS) related to new coal plants involving electric cooperatives.

Dubroff v. Wren Holdings, LLC
Potter Anderson & Corroon LLP August 26 2010
In this decision, the Court of Chancery declined to certify a class of stockholder plaintiffs where the sole claim was for breach of fiduciary duty arising from alleged disclosure violations made in an after-the-fact notice of corporate action by written consent pursuant to 8 Del.

Eighth Circuit rules on diversity jurisdiction for federal actions to compel arbitration
Edwards Angell Palmer & Dodge August 26 2010
A decision of the Eighth Circuit Court of Appeals, Northport Health Services of Arkansas, LLC v. Rutherford, No. 09-2433 (8th Cir. 2010), recently held that diversity of citizenship jurisdiction in the context of a motion to compel arbitration under § 4 of the Federal Arbitration Act (“FAA”) can be determined by looking at the citizenship of the parties named in the proceedings before the district court, plus any indispensible parties who must be joined.

Money in motion
Day Pitney LLP August 25 2010
Money-laundering convictions may be harder to come by, thanks to a Sixth Circuit holding that under 18 U.S.C § 1956(a)(2)(B)(i), the government must prove that the “animating purpose” of the transaction was to conceal the fraudulent nature or source of the funds.

Pennsylvania Supreme Court: general liability insurers have no right to “recoup” defense costs from their insureds
Morgan Lewis & Bockius LLP August 25 2010
On August 17, a unanimous Pennsylvania Supreme Court handed down a decision important not only for Pennsylvania, but potentially for many other states as well.

The subpoenas are coming! The subpoenas are coming!
Day Pitney LLP August 25 2010
Inspectors general may soon have broader investigative power.

A DPA ain’t immunity
Day Pitney LLP August 25 2010
Criminal defendants can introduce evidence that they rejected an offer of immunity to show consciousness of innocence, but not evidence that they rejected an offer of a deferred-prosecution agreement, says one court of appeals.

New Jersey federal court finds that arbitration award was not in manifest disregard of the law
Edwards Angell Palmer & Dodge August 25 2010
Plaintiff moved to vacate an arbitration award issued in favor of defendant Stroehmann Bakers on the grounds that, among other things, the arbitrator's decision was in "manifest disregard of the law."

CAFC Weekly-July 30, 2010
Burns & Levinson LLP August 24 2010
There were only two precedential opinions handed down during the week ending July 30th.

Massachusetts DOMA ruling on hold
Littler Mendelson PC August 23 2010
Last month's landmark ruling in Gill v Office of Personnel Management that declared Section 3 of the Federal Defense of Marriage Act (DOMA) unconstitutional has been temporarily stayed pending an appeal, and the judgment has been modified to clarify that it applies only to the named plaintiffs.

Judge vs. jury determining mental status in capital murder cases before House committee
Duane Morris LLP August 20 2010
A capital murder defendant in Pennsylvania would be ineligible for the death penalty if a judge determines, before the start of the trial, that the defendant is mentally retarded, under legislation that was the subject of a House Judiciary hearing on Tuesday, August 17.

Second Circuit certifies “insured premises” and notice questions to Connecticut Supreme Court
Goldberg Segalla LLP August 17 2010
In Arrowood Indem. Co. v. King, 605 F.3d 62 (2d Cir. (Conn.) May 18, 2010), the insured lived in a private residential community, where all the streets are owned by the homeowners’ association.

Additional insured not entitled to separate policy limits
Goldberg Segalla LLP August 16 2010
In December 2005, the Minnesota Joint Underwriting Association (“MJUA”) issued a professional liability insurance policy to Dr. Konasiewicz.

Employment-related class action filings again above 50%, holding top spot among new class action lawsuits filed in California state and federal courts
Jeffer Mangels Butler & Marmaro LLP August 7 2010
As a resource to California class action defense attorneys, we provide weekly, unofficial summaries of the legal categories for new class action lawsuits filed in California state and federal courts in the Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas.

Police officer's fitness-for-duty examination did not violate ADA or FMLA, Ninth Circuit rules
Jackson Lewis LLP August 5 2010
The City of Yakima, Washington did not violate the Americans with Disabilities Act by requiring a police officer to undergo a fitness-for-duty exam ("FFDE") after he repeatedly exhibited emotionally volatile behavior, a federal appeals court in San Francisco has held.

Competitive cheer is not yet considered a varsity sport
Jackson Lewis LLP August 5 2010
Competitive cheerleading's bid to become a recognized varsity sport was dealt a setback after a district judge ruled that during the 2009-2010 season, the Competitive Cheer team at Quinnipiac University did not function as a varsity sport capable of counting toward the requirements of Title IX of the Education Amendments of 1972 ("Title IX").

No age discrimination where successful candidate had superior credentials, California court holds
Jackson Lewis LLP August 2 2010
A 56-year-old job applicant had no age discrimination claim under the California Fair Employment and Housing Act where he lacked superior credentials and the prospective employer presented consistent justifications for hiring a 40-year-old candidate, the California Court of Appeal has held.

Australia

Corporate Tax

Retirement village sector GST slug
Norton Rose September 1 2010
On 9 June 2010, the ATO released a draft public ruling on the GST treatment of "ingoing contributions" in the development and sale of retirement villages.

Intellectual Property

Is your trade mark distinctive or just descriptive?
Clayton Utz August 27 2010
Exotic Limo Pty Ltd applied to register ExoticLimo (stylised) for car hire and chauffeuring services.

Litigation

Misrepresentations in advertising material for the proposed sale of land: some lessons from a recent case
Norton Rose September 1 2010
A recent NSW case has shed useful light on the judicial treatment of misrepresentations in advertising of properties for sale.

Legislative amendments to manage land access arrangements in NSW
Norton Rose September 1 2010
The land access provisions of the Mining Act 1992 (Mining Act) and the Petroleum (Onshore) Act 1991 (Petroleum Act) were amended on 9 June 2010 with the commencement of the Mining and Petroleum Legislation Amendment (Land Access) Act 2010 (Amendment Act).

Historic win in High Court for resources industry
MARQUE Lawyers August 27 2010
"Since gold is an excellent metal, it must belong to the most excellent person in the realm, the king".

To pay or not to pay – the remuneration of court-appointed receivers
Corrs Chambers Westgarth August 27 2010
The recent Supreme Court of Queensland decision of Golden Star Resources Limited and Anor v Keryn Beatrice Rosel [2010] QSC 28 considered the often contentious issue of the remuneration of receivers.

China

Banking

Pilot scheme to permit insurers to tap China's mainland interbank bond market
Edwards Angell Palmer & Dodge August 26 2010
The People's Bank of China (PBC) announced on 17 August 2010 a pilot scheme to permit Hong Kong and Macau insurers, banks and certain other financial institutions, with the approval of the PBC, to invest in the Chinese mainland's 48.8 trillion renminbi (US$7.2 trillion) interbank bond market.

Competition

SAIC releases the second draft of Rules for Prohibition of Abuse of Dominant Market Positions
King & Wood August 31 2010
To enhance the operability of the Anti-Monopoly Law of the People's Republic of China ("AML") and the transparency of anti-monopoly enforcement, the State Administration for Industrial and Commerce ("SAIC") released the draft of the Rules for Prohibition of Abuse of Dominant Market Positions (Draft for Comments)("First Draft") on April 27, 2009.

Intellectual Property

New trade mark application requirements and Supreme Court opinions in China
McDermott Will & Emery August 31 2010
New requirements for formalities of trade mark applications from the Chinese Trademark Office, in addition to new rules and criteria issued by the Supreme Court of the People's Republic of China, significantly affect the application process as well as the authorization, determination and protection of trade mark rights.

Litigation

European Union

Capital Markets

Upcoming European legislation on short selling and credit default swaps
De Brauw Blackstone Westbroek August 26 2010
Many countries took different measures during the financial crisis regarding naked short selling and naked credit default swaps (CDS).

Competition

Commission announces investigation into international group of P&I clubs
Edwards Angell Palmer & Dodge August 27 2010
On 26 August 2010, the European Commisson (the Commission) opened a competition investigation into the maritime insurance sector, in particular the agreements between the Protection & Indemnity (P&I) Clubs within the International Group of P&I Clubs (the International Group), a worldwide association of thirteen P&I Clubs.

Phase I merger notifications published in the Official Journal
Mayer Brown LLP August 26 2010
Please click here to view table of EU - Phase I merger notifications published in the Official Journal.

Cartels: European Commission urges consumers to claim damages at national courts
De Brauw Blackstone Westbroek August 26 2010
The European Commission has already imposed EUR 1,669 million in fines for cartel behaviour so far this year.

Commission opens investigation into marine insurance agreements
Mayer Brown LLP August 26 2010
The European Commission ("Commission") has opened formal proceedings to investigate whether certain provisions accompanying claim-sharing and joint-reinsurance agreements in the marine insurance sector might infringe EU antitrust rules.

Intellectual Property

Claimed function must be present in the accused product to infringe
McDermott Will & Emery August 27 2010
Addressing the interpretation and effect of Article 9 of Directive 98/44/EC on the legal protection of biotechnological inventions (OJ 1998 L 213, 13) (the Directive), the European Court of Justice (ECJ) has held, inter alia, that the protection provided by a patent relating to genetic information does not extend to cover that genetic information as contained in soy meal, where it does not perform the function for which it is patented, even though it did perform that function previously in the soy plant itself.

This bud’s for Budvar
McDermott Will & Emery August 27 2010
The Court of Justice of the European Communities dismissed an appeal by Anheuser-Busch from the General Court and the Board of Appeal at the Oppositional Division (OHIM) that its "Budweiser" trade mark should be registered despite the presence of three other "Budweiser" marks owned by Budĕjovický Budvar, národní podnik ("Budvar"), which opposed the registration of "Budweiser" by Anheuser-Busch.

Litigation

Ireland

Capital Markets

Netherlands

Corporate Finance/M&A

Court rules during Canon’s USD 1bn public offer for Dutch company Océ
De Brauw Blackstone Westbroek August 26 2010
Japanese company Canon made a USD 1bn public offer for Dutch copier producer Océ, and announced it would replace four out of Océ’s six supervisory directors if the bid was successful.

Corporate Tax

Treaty between Netherlands and Hong Kong expected to enter into force on 1 January 2011
De Brauw Blackstone Westbroek August 26 2010
The recently signed tax treaty between the Netherlands and Hong Kong provides new tax planning opportunities for China-related investments

Litigation

United Kingdom

Banking

Loan relationships and derivative contracts: derecognition of income
Cadwalader Wickersham & Taft LLP August 27 2010
The summer has seen a number of examples of HMRC acting to limit tax avoidance involving accounting (and, therefore, tax) derecognition of credits arising on a company's loan relationships and derivative contracts.

Debt buy-back guidance published
Cadwalader Wickersham & Taft LLP August 27 2010
HMRC has now published guidance in its Corporate Finance Manual on the changes to the connected party loan relationships rules which relate to debt buy-backs.

Ratification of actions
Wragge & Co August 25 2010
In English v English and others, the claimant home owner attended a meeting at the second defendant solicitors' offices where she signed a "solicitor's verification certificate" (SVC).

Competition

Large grocers and the Controlled Land Order
Shepherd & Wedderburn LLP August 31 2010
On 12 August 2010 the Competition Commission published the final version of the Groceries Market Investigation (Controlled Land) Order 2010, which seeks to address competition issues identified as part of the CC's market investigation of the groceries sector.

Competition Commission reviews telecoms appeal process
Mayer Brown LLP August 26 2010
On 24 August 2010 the Competition Commission ("CC") announced that it will be carrying out a short review of how it conducts telecoms appeals.

OFT consults on guidance for handling competition investigations
Mayer Brown LLP August 26 2010
On 20 August 2010 the OFT launched a consultation on draft guidance which sets out how it conducts investigations into potential breaches of competition law.

Corporate Tax

Consultation on exemption for profits of foreign branches
Cadwalader Wickersham & Taft LLP August 27 2010
On 27 July 2010, the Government launched a consultation on reforming the taxation of profits arising from overseas branches of UK tax-resident companies with a view to introducing an exemption in relation to those profits (and a corresponding restriction of loss relief).

Group mismatch schemes: proposed legislation and open meeting on 23 July 2010
Cadwalader Wickersham & Taft LLP August 27 2010
In the Budget held on 24 March 2010, HMRC published a discussion document regarding the proposed introduction of a generic or principles-based rule to respond to certain arrangements termed "group mismatch schemes".

Reform of the controlled foreign companies (“CFC”) legislation
Cadwalader Wickersham & Taft LLP August 27 2010
HM Treasury has now produced more details regarding what will and what will not be dealt with as a part of the interim reform to the CFC legislation proposed to be included in Finance Bill 2011 next year.

Reminder – A-day transitional provisions expire 5 April 2011
Freshfields Bruckhaus Deringer LLP August 24 2010
Pension schemes that were subject to the pre-6 April 2006 (A-day) tax regime, and have not yet updated their rules, are reminded that the transitional provisions expire on 5 April 2011.

The great escape: a warning about VAT
Mills & Reeve LLP July 31 2010
A few weeks ago, a company called Grenane Properties Limited had a very lucky escape in a VAT case.

Information Technology

Information Commissioner’s Office (ICO) updates guidance on breach notification
Mills & Reeve LLP August 5 2010
The UK's ICO has recently updated its guidance for organisations, on when to notify it of data breaches.

Insolvency & Restructuring

Petition of Cheshire West and Chester Borough Council in the administration of Springfield Retail Limited
Morton Fraser August 27 2010
Case considering whether rent which accrued during an administration was payable in full as an expense of the administration or whether payment was a matter of discretion for the court.

Regulated Apportionment Arrangements – Regulator gives guidance on how to apply for approval
Freshfields Bruckhaus Deringer LLP August 24 2010
The Pensions Regulator (TPR) has issued a statement on Regulated Apportionment Arrangements (RAAs) and employer insolvency.

Litigation

Lorraine Lee vs Chartered Properties: a late adjudicator
Fenwick Elliott Solicitors August 27 2010
Ms Lee engaged Chartered to carry out refurbishment works on her property.

New rules on asylum seekers' right to work
Penningtons Solicitors LLP August 27 2010
The UKBA has laid out a statement of changes to the Immigration Rules giving effect to the recent Supreme Court judgement in ZO (Somalaia) 2010.

AMA (New Town) Limited v. Anthony Finlay
Morton Fraser August 27 2010
Sheriff Court case in which a purchaser entered missives with AMA for the purchase of a flat at McEwan Square in Edinburgh.

Inebriated claimant fails to sue council for accident occurring on council’s land
Mills & Reeve LLP August 13 2010
Although this case involved a local authority it will be of interest to universities and colleges.

Public sector pay-offs: a return to the status quo?
Mills & Reeve LLP August 5 2010
The Court of Appeal has overturned last year's High Court decision which blocked a substantial termination payment that a NHS trust had agreed to make to its outgoing chief executive.

Break with care
Mills & Reeve LLP July 31 2010
This recent case highlights the importance of correctly serving break notices.

The great escape: a warning about VAT
Mills & Reeve LLP July 31 2010
A few weeks ago, a company called Grenane Properties Limited had a very lucky escape in a VAT case.

Letters of intent: another cautionary tale
Mills & Reeve LLP July 30 2010
A warning should be attached to all letters of intent: Danger! This letter can seriously damage your bank balance.