Afghanistan

Projects & Procurement

The Karzai ban on security contractors--implications for the contracting community
McKenna Long & Aldridge August 26 2010
On August 16, 2010, the Government of the Islamic Republic of Afghanistan announced that it would order all private security contractors ("PSCs") working in Afghanistan to obtain licensure from the Afghan government -- and bar all unlicensed contractors from work in the country.

Australia

Arbitration

Arbitration in Australia: how recent reforms have improved the conduct of international arbitration and the enforcement of awards
Jones Day August 24 2010
Recent reforms to the International Arbitration Act 1974 (Cth) (the "Act") have increased the certainty and effectiveness of conducting and enforcing international arbitrations in Australia.

Banking

The Australian PPSA - what it means for you
Chapman Tripp August 26 2010
The Australian Personal Property Securities Act 2009, and the accompanying PPS register, are scheduled to start operation in May 2011.

Capital Markets

Deadline for managed investment trust (MIT) capital account election looming
Gilbert + Tobin August 24 2010
Under Division 275 of the Income Tax Assessment Act 1997 (dealing with the capital account election for MITs), a trust which became a MIT prior to the 2009-2010 income year has until 2 September 2010 to make the capital account election (the election).

Commercial Property

Major overhaul of WA planning system - a move towards centralised planning
Clayton Utz August 30 2010
Western Australia's planning laws will be more centralised, but, according to the State Government, will also have more flexibility for strategic planning in regional areas and large projects, following the passage of the Approvals and Related Reforms (No 4) (Planning) Bill 2009 (WA).

Building energy efficiency disclosure
Piper Alderman August 26 2010
The Building Energy Efficiency Disclosure Act 2010 (Cth) (Act) received royal assent by Federal Parliament on 28 June 2010.

Smooth moves
Piper Alderman August 26 2010
Proper preparation and appropriate agreement for lease (AFL) terms are crucial to ensure a smooth and successful move.

Draft State Environmental Planning Policy (Competition) 2010 released
Freehills August 24 2010
On 27 July 2010 the Department of Planning released the draft State Environmental Planning Policy (Competition) 2010 (Draft SEPP) for public comment.

Residential property sales in Queensland – PAMDA relief at last
Norton Rose August 23 2010
Contract processes for residential property sales will be simpler and compliance will be easier.

Changes to Sale of Land Act (Vic )
Corrs Chambers Westgarth August 19 2010
The Consumer Affairs Legislation Amendment (Reform) Bill 2010 (Vic) (Bill) was introduced into the Legislative Assembly (Assembly) on 27 July 2010.

Company & Commercial

Dividends – beware the new changes
Piper Alderman August 26 2010
There has been surprisingly little discussion surrounding one of the most fundamental changes to the Corporations Act in recent times.

Phone cards found to be misleading and deceptive
Blake Dawson August 25 2010
The Federal Court has held that phone card sellers, Prepaid Services Pty Ltd (Prepaid Services) and Boost Tel Pty Ltd (Boost), were in contravention of the Trade Practices Act 1974 (Cth).

ACCC institutes proceedings against EDirect Pty Ltd (also trading as VIPtel Mobile)
Blake Dawson August 25 2010
The Australian Competition and Consumer Commission (ACCC) has instituted proceedings against EDirect Pty Ltd (also trading as VIPtel Mobile) in the Federal Court in Darwin.

Corporate Tax

Tax debts: beware the SME
Hall & Wilcox August 30 2010
A recent sharp increase in corporate insolvencies, particularly in the SME sector, has (in part) been attributed to the Australian Taxation Office (ATO) taking a firmer approach to recovering outstanding tax debts.

Mining kryptonite – the tax that is no longer super
Piper Alderman August 26 2010
After considerable pressure from certain mining companies, the Australian Government has announced that the proposed Resource Super Profits Tax (RSPT) will be replaced by a new Minerals Resource Rent Tax (MRRT) and an extended Petroleum Resource Rent Tax (PRRT).

Employment & Labor

“Talk to my lawyer at QCAT”
Piper Alderman August 26 2010
The use of legal representation is, for the most part, contrary to the purpose of Queensland Civil and Administrative Tribunal (QCAT) pursuant to its enabling legislation.

The right to request flexible working arrangements following a period of parental leave
Swaab Attorneys August 25 2010
Employers should be aware that employees have the right to request a change in working arrangements to assist the employee in caring for a child.

Employment contracts: the implied term of mutual trust and confidence
Clayton Utz August 24 2010
Employers should be wary of the possibility that a court could imply the term of mutual trust and confidence into an employment contract, and that a breach could bring consequences.

Who is in? Who is out? Scope orders under the Fair Work Act
Clayton Utz August 24 2010
The history of collective bargaining shows that it has not been unusual for the bargaining parties involved to disagree about the scope of coverage that a particular collective agreement should have, such as the classes or groups of employees to be covered.

Energy & Natural Resources

Amendments to Queensland’s resources and energy legislation: the Geothermal Energy Bill 2010
HopgoodGanim August 25 2010
On Thursday 19 August 2010, the Queensland Parliament passed the Geothermal Energy Bill 2010.

Environment

Building energy efficiency disclosure
Piper Alderman August 26 2010
The Building Energy Efficiency Disclosure Act 2010 (Cth) (Act) received royal assent by Federal Parliament on 28 June 2010.

Healthcare

Health Alert - 23 August 2010
DLA Phillips Fox August 23 2010
Health Alert is a summary of the critical judgments, legislation, press releases and news items which have come to our attention each week.

Information Technology

ID scanning and privacy issues: new guidelines
Blake Dawson August 25 2010
Increasingly, clubs and pubs are using technology to electronically capture identity information about their customers.

Insolvency & Restructuring

Effects of termination of a deed of arrangement on the claim on a director’s policy of insurance.
Corrs Chambers Westgarth August 20 2010
On 4 August 2010, the High Court handed down judgment in CGU Insurance Limited v One.Tel Limited (In Liquidation) [2010] HCA 26.

Insurance & Reinsurance

Intellectual Property

When did your patent portfolio last have a health check?
Watermark August 25 2010
Like all other assets, intellectual assets require proper care and maintenance.

Leisure & Tourism

Litigation

Fighting for democracy in digital age
MARQUE Lawyers August 26 2010
A Federal Court decision last week could hasten the adoption of cutting edge technology and facilitate a move away from the need for hard copy forms to be signed by traditional means.

Litigation reform for Victorian courts - the Civil Procedure Bill 2010
Norton Rose August 26 2010
The Civil Procedure Bill 2010 (Vic) (the Reforms) will result in significant changes to the conduct of civil litigation in Victoria.

The High Court’s last word in Osland v Secretary to the Department of Justice
Piper Alderman August 26 2010
In 2002, Mrs Heather Osland made an FOI request under the Freedom of Information Act 1982 (Vic) (Act), seeking access to legal advice provided to the Victorian Attorney-General.

The reform of class action laws in NSW
Norton Rose August 25 2010
On 6 August 2010, the Hon. John Hatzistergos MLC, Attorney General and Minister for Industrial Relations, announced a proposal to reform class action laws in New South Wales (NSW).

An historic victory in the federal court
MARQUE Lawyers August 16 2010
Taking on electoral litigation was never going to be easy.

Public

An historic victory in the federal court
MARQUE Lawyers August 16 2010
Taking on electoral litigation was never going to be easy.

Telecommunications

New SMS mobile rules to curtail suspect mobile premium service providers
Blake Dawson August 25 2010
The Australian Communications and Media Authority (ACMA) has issued new rules to help ensure consumers are not billed for premium SMS and MMS from suspect mobile premium service providers.

A discussion into a national standard for fax marketing
Blake Dawson August 25 2010
The Australian Communications and Media Authority (ACMA) has released a discussion paper as part of its development of a national standard for the fax marketing industry (standard).

Proposed amendments to Competition and Consumer Safeguards Bill
Baker & McKenzie August 24 2010
The Department of Broadband, Communications and the Digital Economy has released amendments to the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009 following the signing of the Financial Heads of Agreement by NBN Co and Telstra.

Brazil

Corporate Immigration

Agreement on EU-Brazil short-stay visa waiver nears conclusion
Littler Mendelson PC August 13 2010
Following two years of negotiations, the European Commission has adopted draft decisions regarding short-stay visa waiver agreements with Brazil for holders of ordinary passports and for holders of diplomatic, service and official passports.

British Virgin Islands

Employment & Labor

Termination of employment in the British Virgin Islands
Harney Westwood & Riegels August 25 2010
There are several ways by which the contract of employment may be terminated in accordance with the Labour Code, 2010 (the “New Labour Code”) when it comes into force by proclamation of the Governor.

Canada

Arbitration

IIROC proposes increasing award limit under arbitration program
Stikeman Elliott LLP August 25 2010
The Investment Industry Regulatory Organization of Canada (IIROC) yesterday released a summary of public comments relating to its review of the IIROC arbitration program in response to a notice published in December 2009.

Banking

Unsolicited Telecommunications Rules apply to financial industry
Stikeman Elliott LLP August 23 2010
On August 19, the Canadian Radio-television and Telecommunications Commission (CRTC) issued a decision amending its interpretation of the Unsolicited Telecommunications Rules with respect to the financial industry.

CSA release registration exemption for mortgage investment entities
Stikeman Elliott LLP August 20 2010
The Canadian Securities Administrators (CSA) today announced that CSA members have issued parallel orders to provide mortgage investment entities that meet certain requirements with relief from investment fund manager registration requirements and adviser registration requirements until December 31, 2010.

Code of Conduct for the Credit and Debit Card Industry in Canada
Stikeman Elliott LLP August 20 2010
The Code of Conduct for the Credit and Debit Card Industry seeks to promote transparency and fairness for merchants and consumers.

Capital Markets

SEC releases final rule regarding shareholder director nominations
Stikeman Elliott LLP August 26 2010
The U.S. Securities and Exchange Commission (SEC) yesterday announced that it is amending federal proxy rules in order to "facilitate the effective exercise of shareholders' traditional state law rights to nominate and elect directors to company boards of directors."

OSC releases 2010 Annual Report
Stikeman Elliott LLP August 20 2010
Earlier this week, the Ontario Securities Commission released its 2010 Annual Report, which provides a review of the OSC's activities over the past year.

Rating agency updates
Orrick Herrington & Sutcliffe LLP August 20 2010
On August 18, Moody's released its methodology for covered bond ratings.

Minister approves regulatory cooperation MOU
Stikeman Elliott LLP August 20 2010
As we discussed in our post of June 16, the Ontario Securities Commission, Quebec's Autorité des marchés financiers and the U.S. Securities and Exchange Commission (SEC) recently signed a Memorandum of Understanding to facilitate the supervision of regulated entities that operate on a cross-border basis.

Special Economic Measures (Iran) Regulations now in effect
Stikeman Elliott LLP August 12 2010
On July 22, 2010 the new Special Economic Measures (Iran) Regulations (SEMA Iran Regulations) came into effect under the Special Economic Measures Act (Canada) and were published on August 4, 2010 in the Canada Gazette.

Commercial Property

Remediation certificates – creating new opportunities for redeveloping property with an environmental “past”?
Miller Thomson LLP August 26 2010
In Alberta, the absence of express brownfields redevelopment legislation has meant that some owners of contaminated property concerned with unpredictable and on-going liability have resorted to simply walking away, leaving abandoned sites and literal brown fields.

Provincial incentive program for commercial lighting retrofits
Gowling Lafleur Henderson LLP August 25 2010
Alberta has launched a new incentive program for commercial premises interested in retrofitting in order to install energy-efficient lighting.

Company & Commercial

Examples of deficient and entity-specific MD&A disclosure
Cassels Brock & Blackwell LLP August 13 2010
Revenue increased from $900,000 to $1,080,000, a 20% increase.

Competition

Canadian plaintiffs acheive a breakthrough in certifying price-fixing class actions
Affleck Greene McMurtry LLP August 26 2010
Courts in two Canadian cases have recently made it easier to certify direct and indirect-purchaser class actions seeking damages for alleged price fixing.

Court upholds certification of class action in price-fixing case
Stikeman Elliott LLP August 25 2010
In a judgment rendered June 8, 2010, the Ontario Superior Court dismissed a motion by FMC Corporation and FMC of Canada, Ltd. (collectively, FMC) for leave to appeal a September 28, 2009 decision certifying a class action.

Competition Bureau reaches agreement in Teva/Ratiopharm merger
Stikeman Elliott LLP August 25 2010
On July 30, 2010, the Competition Bureau (Bureau) announced that it had reached a consent agreement with Teva Pharmaceuticals Industries Ltd. (Teva) and the Merckle Group, carrying on business as ratiopharm, requiring the divestiture of assets and associated licenses in relation to certain forms of acetaminophen oxycodone tablets and morphine sulfate sustained release tablets.

Corporate Finance/M&A

Update on foreign investment in Canada
Fraser Milner Casgrain LLP August 24 2010
Over the past year Canada has witnessed a number of significant developments in its foreign investment review process.

Proposed amendments to the Personal Information Protection and Electronic Documents Act: relief is on the way for M&A transactions
Gowling Lafleur Henderson LLP August 23 2010
The disclosure of information regarding current employees in transaction documents and schedules and the conducting of employee-related due diligence in M&A deals in Canada have been historically hampered by uncertainty in privacy legislation.

Corporate Immigration

AINP not accepting applications under the U.S. Visa Holder class and family stream
Bomza Law Group August 23 2010
Effective immediately the AINP is currently not accepting applications under the AINP U.S. Visa Holder Category and the AINP Family Stream.

Amended regulations drastically affect Canadian Temporary Foreign Worker Program
Seyfarth Shaw LLP August 23 2010
At the beginning of the year, Citizenship and Immigration Canada ("CIC"), in cooperation with Human Resources and Skills Development Canada ("HRSDC") and the Canada Border Services Agency ("CBSA"), proposed dramatic amendments to the Immigration and Refugee Protection Regulations.

Important changes to humanitarian and compassionate applications
Bomza Law Group August 23 2010
Several changes have recently been made to the humanitarian and compassionate (H&C) provisions of the Immigration and Refugee Protection Act.

Corporate Tax

Canadian court overturns decision on international pharmaceutical transfer pricing case
Torys LLP August 27 2010
The Canadian Federal Court of Appeal recently overturned the Tax Court of Canada's 2008 decision regarding the international transfer pricing of cross-border supplies of pharmaceutical ingredients in the case of GlaxoSmithKline Inc. v. Canada.

Employee Benefits & Pensions

Ontario announces second stage of pension reform
Osler Hoskin & Harcourt LLP August 25 2010
On August 24, 2010 the Ontario government announced the second stage of a multi-step process to reform the province's pension system - the first being the passage of the Pension Benefits Amendment Act, 2010 (Bill 236) on May 5, 2010.

The HR space: Canada's rocky economy leads to legal refinements in employment benefit law
Fasken Martineau DuMoulin LLP August 24 2010
As the prognosis for Canada's economy remains uncertain, the Canadian court system continues to churn out employment cases arising from distressed employers.

Employment & Labor

Foreign medical residents — now LMO exempt
Bomza Law Group August 20 2010
Effective September 1st, 2010, universities will no longer be required to apply for a Labour Market Opinion (LMO) to hire temporary foreign medical residents, clinical fellows or research fellows.

Energy & Natural Resources

Environmental Protection and Management Regulation approved pursuant to the Oil and Gas Activities Act
Gowling Lafleur Henderson LLP August 25 2010
The Environmental Protection and Management Regulation ("Regulation") was approved on June 24, 2010, but is not yet in force.

Alberta decision interprets meaning of "producible" in petroleum and natural gas leases
Stikeman Elliott LLP August 24 2010
In Bearspaw Petroleum Ltd v. Encana Corp., the Alberta Court of Queen’s Bench considered an action by a lessee seeking a declaration that it had subsisting rights under a petroleum and natural gas lease, in response to a termination of lease notice delivered by the lessor.

White House releases report on minerals management service's offshore permitting policies
Stikeman Elliott LLP August 23 2010
The White House Council on Environmental Quality ("CEQ") released a report which reviewed the permitting policies of the federal agency responsible for oil and gas offshore leases.

PM announces support for wind energy project in Prince Edward Island
Gowling Lafleur Henderson LLP August 23 2010
Prime Minister Stephen Harper today announced the Government of Canada is providing support for an innovative research project in Prince Edward Island which will advance Canada's understanding and use of wind power as a clean energy source.

Environment

Environmental Commissioner reports on MHSW program
Gowling Lafleur Henderson LLP August 25 2010
In late July, the Environmental Commissioner of Ontario released a report entitled "Getting it Right: Paying for the Management of Household Hazardous Wastes".

Sustainable Forest Development Act
Gowling Lafleur Henderson LLP August 25 2010
On March 23, 2010 the National Assembly adopted on the Sustainable Forest Development Act ("Bill 57"), which will completely replace the present Forest Act as of April 1, 2013.

Canadian Environmental Assessment Agency assumes 22 comprehensive studies
Gowling Lafleur Henderson LLP August 25 2010
As a result of the amendments passed as part of Bill C-9, the Canadian Environmental Assessment Agency ("Agency") became responsible for carrying out most comprehensive studies.

Regulation to amend the Agricultural Operations Regulation
Gowling Lafleur Henderson LLP August 25 2010
The Agricultural Operations Regulation, made pursuant to the Environment Quality Act, has been amended.

Ontario Power Authority announces new microFITT price for ground mounted-solar
Gowling Lafleur Henderson LLP August 25 2010
In response to a storm of criticism over retailers charging incorrect "eco-fees" on household cleaners and paints in July, Minister Gerretsen suspended the collection of fees pursuant to the Consolidated Phase of the Municipal Hazardous or Special Waste Program (or "Orange Drop Program") for 90 days.

US, Canada and Mexico to integrate GHG monitoring, reporting and verification.
Van Ness Feldman August 23 2010
At the annual Commission for Environmental Cooperation (CEC) meeting, representatives of the United States, Canada and Mexico announced an initiative under which three nations would develop common standards for GHG monitoring, reporting and verification.

WCI implementing legislation fails in Oregon, Washington.
Van Ness Feldman August 23 2010
Proponents of the Western Climate Initiative (WCI), a regional GHG cap-and-trade program originally comprised of seven western states and four Canadian provinces, failed to secure passage of implementing legislation before the end of the legislative sessions in Oregon and Washington.

General Practice

Mission impossible: estate planning and assisted human reproduction
WeirFoulds LLP August 17 2010
The enactment of the Assisted Human Reproduction Act has been an important step in the development of a legal framework for the increased use of assisted reproduction technology in modern family planning.

Healthcare

Natural health product changes
Gowling Lafleur Henderson LLP August 26 2010
As of August 9, 2010, the NHPD will no longer accept a product licence application (PLA) referring to ingredients that are not listed in the Natural Health Products Ingredient Database (NHPID) or are listed but the use and/or source of the ingredient is different from that listed in the NHPID.

Purdue Pharma v Minister of Health, judicial review of decision of Office of Patented Medicines and Lliaison (“OPML”), TARGIN, July 8, 2010
Gowling Lafleur Henderson LLP August 26 2010
Purdue filed a New Drug Submission ("NDS") as part of its application for a notice of compliance ("NOC") to market and sell the drug TARGIN in Canada.

Federal Court denies prohibition order and finds patent obvious
Ogilvy Renault LLP August 26 2010
On July 15, 2010, the Federal Court dismissed an application by Novo Nordisk Canada Inc. and Dr. Karl Thomae GmbH for an order prohibiting the Minister of Health from issuing a notice of compliance to Cobalt Pharmaceuticals Inc.

Provincial funding for IVF
Gowling Lafleur Henderson LLP August 26 2010
Quebec recently became the first the first jurisdiction in North America to offer a government-funded program for in vitro fertilization (IVF).

PMPRB releases latest newsletter
Gowling Lafleur Henderson LLP August 26 2010
On July 30, 2010, the PMPRB released its latest newsletter.

Sandoz Canada v Abbott Laboratories, appeal and cross-appeal of PMNOC decision, Clarithromycin extended-release, June 22, 2010
Gowling Lafleur Henderson LLP August 26 2010
Sandoz served a notice of allegation ("NOA") upon Abbott and filed an Abbreviated New Drug Submission ("ANDS") with respect to clarithromycin extended-release.

Provinces and territories discuss joining forces to purchase drugs at lower prices
Gowling Lafleur Henderson LLP August 26 2010
On August 6, 2010, Canadian Premiers attended their annual Council of the Federation Premiers' Conference in Winnipeg to discuss a joint alliance among the provinces and territories for purchasing common drugs and medical supplies and equipment for the public sector.

Pfizer v Ratiopharm, appeal of decision on invalidity, Amlodipine Besylate, July 29, 2010
Gowling Lafleur Henderson LLP August 26 2010
In the Federal Court, Pfizer's patent for amlodipine besylate was held invalid on numerous grounds, including obviousness.

New Canada Consumer Product Safety Act consultation: administrative monetary penalties
Ogilvy Renault LLP August 26 2010
On August 25, 2010, Health Canada announced another consultation for regulations under the proposed Canada Consumer Product Safety Act ("CCPSA").

Novo Nordisk v. Cobalt Pharmaceuticals, S. 55.2 proceeding, Repaglinide, Aug. 3, 2010
Gowling Lafleur Henderson LLP August 26 2010
Cobalt served a NOA with respect to repaglinide, the S enantiomer of a previously disclosed racemic compound (the “388 compound”), alleging invalidity of the '851 patent on grounds of anticipation, obviousness and s. 53(1).

Astrazeneca v. Apotex
Borden Ladner Gervais LLP August 25 2010
The Court found the allegations of invalidity as to lack of sound prediction of utility and of obviousness justified and dismissed the application.

Other IP industry news of note
Borden Ladner Gervais LLP August 25 2010
The amendments to the Federal Court Rules regarding expert witnesses have been published into law (starting at pg 1547).

Amendments to Alberta's Health Information Act come into force on September 1, 2010
Stikeman Elliott LLP August 23 2010
Recent amendments to Alberta's Health Information Act, and related regulations, come into force on September 1, 2010.

Information Technology

The Québec Private Security Act and its application to electronic security firms
Borden Ladner Gervais LLP August 27 2010
In 2004 the Québec Government introduced the Private Security Act (the "Act") to provide a modern legislative and regulatory framework for private security activities.

Insolvency & Restructuring

Sally Creek: a cautionary tale for trustees in bankruptcy
Miller Thomson LLP August 16 2010
The recent Ontario Court of Appeal decision in Murphy v Sally Creek Environs Corporation, 2010 ONCA 312 ("Sally Creek") is a cautionary tale for Trustees in bankruptcy ("Trustees") and the counsel who represent them.

Intellectual Property

Dual protection for personality rights
Bereskin & Parr LLP September 1 2010
In Canada, personality rights enjoy common law and statutory protection, stemming from an individual's publicity rights (which are proprietary in nature) and the right to privacy (a personal interest).

Litigation

Ontario Court of Appeal clarifies enforceability of exclusive jurisdiction clauses
McMillan LLP August 13 2010
Parties to commercial contracts are generally held to the bargains they have made.

Media & Entertainment

The CMF and eligible distribution fees
Heenan Blaikie LLP August 25 2010
You can say that weaving through the system at the CMF can be a frustrating process, but you can't say the staff at the CMF aren't helpful.

Product Liability

Public

Corruption of government officials: gifts that keep on giving
Lang Michener LLP August 30 2010
With the recent shocking findings of the Oliphant Inquiry concerning apparently "gratuitous" cash payments to former prime minister Brian Mulroney, and the current high-profile Basi/Virk trial in British Columbia regarding allegations of bribery and corruption, it is perhaps time for a short lesson in the law related to corruption of public officials.

Amendments proposed to U.S. ITAR to address Canadian human rights law concerns
Stikeman Elliott LLP August 24 2010
The International Traffic in Arms Regulations ("the ITAR") issued by the U.S. Government have been the subject of significant controversy in Canada.

Securitization & Structured Finance

Rating agency updates
Orrick Herrington & Sutcliffe LLP August 20 2010
On August 18, Moody's released its methodology for covered bond ratings.

Telecommunications

Trade & Customs

White Collar Crime

China

Banking

SAFE issues new rules on foreign security
Mayer Brown LLP August 26 2010
On 30 July 2010, China's State Administration of Foreign Exchange (SAFE) issued a Notice on the Administration of the Provision of Security to Foreign Entities by Domestic Institutions.

Collusive behaviour amongst banks?
King & Wood August 25 2010
In mid-August, it was reported in the press that the National Development and Reform Commission (NDRC) had received complaints that the commercial banks in China have engaged in price-fixing conduct.

New circular to change business model of bank-trust cooperation
King & Wood August 24 2010
As a source of steady income, trust companies had been taking loans off the books of banks and repackaging them up as trust products.

Company & Commercial

Comparative analysis of local rules regarding formation of private equity funds and management companies in China
Greenberg Traurig LLP August 26 2010
Against the backdrop of a huge amount of domestic liquidity from both state-owned and non-state enterprises, the launch of the long-awaited Growth Enterprise Market (GEM) in Shenzhen at the end of 2009 and the continued growth of private equity investment activity in China, China's four major cities, Beijing, Shanghai, Shenzhen and Tianjin, continue to compete to become China's hub for the formation of both domestic and foreign-invested equity investment fund enterprises (EIFEs) and equity investment management enterprises (EIMEs) with the promulgation of various local rules and incentive policies for the formation of EIFEs and EIMEs.

Supreme People’s Court released new provisions about issues involving foreign-invested enterprises
Lehman Lee & Xu August 18 2010
On August 5th 2010, China's Supreme People's Court (SPC) issued a set of regulations providing a detailed ruling basis for cases involving foreign investment companies regarding equity transfer, anonymous investment and other procedures, which will enter into effect on August 16th 2010.

Competition

Chinese officials impose conditions on Novartis’ acquisition of Alcon
Jones Day August 27 2010
After a four-month review, on 13 August 2010, China's Ministry of Commerce ("MOFCOM") authorized Novartis' acquisition of Alcon subject to conditions.

Regulations on divesting assets - enacted
King & Wood August 26 2010
On 5 July 2010, the Ministry of Commerce (MOFCOM) enacted regulations which set out the rules and procedures to do with divesting assets.

Unusual remedies a feature of Mofcom’s 6th conditional clearance decision
Mayer Brown LLP August 20 2010
China’s Ministry of Commerce (Mofcom) has approved the proposed acquisition by Swiss pharmaceutical company Novartis AG (“Novartis”) of world-leading eye care company Alcon Inc. (“Alcon”), subject to conditions.

Chinese Ministry of Commerce imposes conditions on Novartis for its acquisition of Alcon
Freshfields Bruckhaus Deringer LLP August 16 2010
On 13 August 2010, the Chinese Ministry of Commerce (MOFCOM) conditionally cleared the acquisition by Novaritis of Alcon.

Corporate Finance/M&A

Corporate Immigration

Can a foreigner's family (e.g. spouse, children) accompany him/her during the period of his/her work in the PRC?
Mayer Brown LLP August 27 2010
Yes, as long as the relevant family member enters the PRC with a valid passport and visa, and obtains a residence permit from the local public security bureau within 30 days of entering the PRC.

China announces details regarding employment service cooperation with New Zealand
Lehman Lee & Xu August 24 2010
China's Ministry of Commerce (MOFCOM) has recently issued a notice stating the arrangements for the employment service cooperation with New Zealand.

Corporate Tax

Circular 698: China’s anti-tax avoidance measures for offshore SPVs
Cadwalader Wickersham & Taft LLP August 24 2010
In a circular issued on 10 December 2009, the State Administration of Taxation ("SAT") made clear its intention to target offshore transactions involving the indirect transfer of PRC enterprises (Notice on Strengthening the Management of Enterprise Income Tax Collection of Proceeds from Equity Transfers by Non-Resident Enterprises Guoshuihan [2009] No.

Employment & Labor

Failure to keep employment contract in secure location leads to double wage liability
Baker & McKenzie July 6 2010
The Huizhou Municipal Intermediate People's Court in Guangdong Province reportedly ordered a company to pay double wages approximately equal to RMB 20,000 for failing to enter into an employment contract with a former manager.

Energy & Natural Resources

Ivanhoe mines announces financial results and review of operations for the second quarter of 2010
Lehman Lee & Xu August 23 2010
Ivanhoe Mines announced its results for the quarter ended June 30, 2010 on August 16, 2010.

Environment

China to close over 2,000 industrial facilities in bid to improve energy efficiency
Van Ness Feldman August 16 2010
The Chinese government announced that it would force about 2,087 aging steel mills, cement factories, and other industrial facilities to close by September of this year, citing the country's goal of improving the energy intensity of its economy by 20% relative to 2005 by the end of this year.

General Practice

Rules on supervising establishment of criminal cases issued
Lehman Lee & Xu August 24 2010
The Supreme People's Procuratorate and Ministry of Public Security have jointly published the "Provisions concerning the Supervision of Opening Criminal Cases (Trial)" which will become effective throughout China from 1 October 2010.

Healthcare

Premature development causes unease in China
Shook Hardy & Bacon LLP August 20 2010
Chinese health experts have reportedly estimated that "at least 30,000 children developed early maturity" in Shanghai alone, raising concerns about food additives and pesticides allegedly laden with sex hormones.

Insurance & Reinsurance

US insurance inquiry - possible fallout for China?
King & Wood August 31 2010
Recently, the Associated Press reported that the New York State Attorney General has served subpoenas on two major multi-national life insurers as part of that office's inquiry into those companies policies for paying death benefits to life insurance policyholders' beneficiaries.

China Insurance Regulatory Commission issues guidelines to strengthen insurers' control of funds
Edwards Angell Palmer & Dodge August 26 2010
On 17 August 2010 the China Insurance Regulatory Commission (the CIRC) issued basic guidelines for the internal controls at Chinese insurance companies, which include monitoring their allocation and management of insurance funds.

China releases new rules on the utilization of insurance funds
Lehman Lee & Xu August 18 2010
The China Insurance Regulatory Commission (CIRC) issued a set of "Interim Measures on the Utilization of Insurance Funds" (Measures) recently, concerning the regulation of investments of the insurers with the insurance funds.

Intellectual Property

Filling the gaps in protection
Kangxin Partners PC September 1 2010
With the rapid development of China's market economy and the emergence of new forms of marketing models, there is a growing interest in new forms of property rights - image rights - to deal with the growing commercial value of celebrities' fame and identity.

Carrefour’s lawsuit against chinese supermarket chain over name
Lehman Lee & Xu August 25 2010
Carrefour SA has filed a lawsuit against Anhui Jiale Supermarket Chain Co Ltd and its subsidiaries in Fuyang, claiming they violated the rule of fair competition and infringed upon the Carrefour trademark.

Litigation

Media & Entertainment

Private Client & Offshore Services

Product Liability

Chinese officials arrest dairy personnel in new melamine contamination scandal
Shook Hardy & Bacon LLP August 27 2010
After Chinese food safety authorities recently found milk powder laced with melamine, police have reportedly arrested three officials from the Dongyuan Dairy Factory in Qinghai province and three dairy suppliers from Hebei province.

Projects & Procurement

Government procurement in China
Reed Smith LLP August 12 2010
China's public procurement market, like the rest of its economy, is growing at a remarkable pace.

Securitization & Structured Finance

European Union

Banking

European Commission extends the Slovenian bank liquidity support scheme
Alston & Bird LLP August 25 2010
Yesterday, the European Commission announced the extension of the liquidity support scheme for banks in Slovenia until the end of 2010.

Capital Markets

BBA responds on transaction reporting
Denton Wilde Sapte LLP August 27 2010
BBA has responded to CESR's consultation on transaction reporting.

Industry responds on categorisation
Denton Wilde Sapte LLP August 27 2010
BBA, the AFME, ISDA and ICMA have responded to CESR's consultation on client categorisation under MiFID.

Company & Commercial

UK government's "call for evidence and views" on a European contract law
Edwards Angell Palmer & Dodge August 26 2010
On 18 August 2010 the UK Ministry of Justice launched a "Call for Evidence and Views" to inform its response to a European Commission Green Paper on a European contract law.

Corporate Immigration

E-commerce

Court of Justice rules on another AdWords case
Marks & Clerk August 25 2010
In July, the Court of Justice of the European Union (CJEU) ruled on the case Protakabin Ltd and Portakabin BV v Primakabin BV in the Netherlands, which involved use of registered trade marks as sponsored keywords.

Environment

Access to information on litter
Mason Hayes+Curran August 25 2010
The European Communities (Access to Information on the Environment) Regulations 2007 came into operation on May 1, 2007.

The EU Emissions Trading System advances towards the auctioning of allowances from 2013
Herbert Smith LLP August 23 2010
Member States have expressed their support for a draft Regulation concerning the auctioning of emission allowances during the third trading period of the EU Emissions Trading System (EU ETS) beginning in 2013.

Healthcare

Compassionate use in Europe: a patchy framework for early market entry
Jones Day August 19 2010
It has become a paradigm in most jurisdictions that market entry of pharmaceuticals requires marketing authorization.

Information Technology

Article 29 Working Party Opinion 3/2010 on the principle of accountability: 'made to measure' data privacy compliance for the proactive?
Reed Smith LLP August 10 2010
On July 13, 2010, the influential Article 29 Working Party (Working Party), consisting of all the European Union's national data privacy regulators, adopted Opinion 3/2010 on the principle of accountability (Opinion).

Insurance & Reinsurance

CEIOPS urges QIS5 support
Denton Wilde Sapte LLP August 27 2010
CEIOPS has published a spreadsheet that solo undertakings and groups should use to support their QIS5 submissions.

Competition law probe into marine insurance agreements
Rajah & Tann LLP August 27 2010
The European Commission issued a press release on 26 August 2010 announcing that it has commenced an investigation into marine insurance agreements by the Protection & Indemnity Clubs ('P&I Clubs') within the International Group of P&I Clubs ('IG').

Fifth Solvency II quantitative impact study begins with a call for participation from the European Commission
Edwards Angell Palmer & Dodge August 27 2010
The fifth Quantitative Impact Study on the Solvency II implementing measures (QIS5) was launched by the European Commission (the Commission) on 23 August 2010.

Intellectual Property

Digitisation and online accessibility of Europe’s cultural heritage
Advokatfirmaet Grette August 29 2010
The Commission's Reflection Group on Digitisation, established in April 2010, has now launched its consultation and seeks views on how to boost the online presence of Europe's cultural heritage.

EPO issues guidance on prior art disclosure requirements
Marks & Clerk August 19 2010
The European Patent Office (EPO) has recently published further information on Rule changes which come into force on 1 January 2011 and which introduce a limited duty of candour to the EPO.

Litigation

ECJ clears up confusion between data protection principles and the right of access to public documents
Mills & Reeve LLP July 30 2010
The recent case of the European Commission v Bavarian Lager has provided useful guidance for public bodies faced with a request to disclose public documents (eg under the Freedom of Information Act), but concerned disclosing personal data (such as names) included in the documents.

Media & Entertainment

Product Liability

Public

Access to information on litter
Mason Hayes+Curran August 25 2010
The European Communities (Access to Information on the Environment) Regulations 2007 came into operation on May 1, 2007.

Securitization & Structured Finance

EU–US risk retention comparison
White & Case LLP August 25 2010
In the United States, the Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (the "Dodd-Frank Act") was signed into law by President Barack Obama on 21 July 2010.

Shipping & Transport

Trade & Customs

Import of US rice
Blake Lapthorn August 25 2010
Import restrictions on the import of rice from the US have been lifted.

France

E-commerce

Decree defining gross negligence finally published
Baker & McKenzie August 24 2010
The Decree n°2010-695 on "defining the misdemeanour of gross negligence for the protection of the literary and artistic property" has been published.

General Practice

French estate planning for UK residents
Blake Lapthorn August 25 2010
When dealing with inheritance planning in England, one automatically thinks of making a Will.

Intellectual Property

Private Client & Offshore Services

French estate planning for UK residents
Blake Lapthorn August 25 2010
When dealing with inheritance planning in England, one automatically thinks of making a Will.

Global

Arbitration

The new UNCITRAL arbitration rules
Reynolds Porter Chamberlain LLP August 23 2010
The United Nations Commission on International Trade Law (UNCITRAL) published revised arbitration rules, replacing the1976 version with effect from 15 August 2010.

The revised IBA rules of evidence
Reynolds Porter Chamberlain LLP August 23 2010
Since being issued in 1999, the IBA Rules on the Taking of Evidence in International Commercial Arbitration have gained wide acceptance within the international arbitral community.

Banking

Basel looks at loss absorbency
Denton Wilde Sapte LLP August 27 2010
Basel is consulting on a requirement to allow regulators to ask for the contractual terms of capital instruments to be written off or converted to common shares if the bank cannot otherwise support itself in the private market.

Company & Commercial

Changes to fair-value reporting could impact valuations
Fox Rothschild LLP August 19 2010
US and international accounting proposals are being circulated which could impact the way private equity, venture capital and other alternative private investment funds explain how they appraised an asset including real estate.

Corporate Finance/M&A

Trade & Customs

A summer of sanctions: world leaders respond to Iranian obstinacy
Reed Smith LLP August 12 2010
The global unease surrounding Iran's development of nuclear capabilities has reached the tipping point.

Hong Kong

Competition

Hong Kong announces Competition Bill
Baker & McKenzie August 31 2010
The Government of the Hong Kong Special Administrative Region has published the Competition Bill 2010 (the Bill) in the Government Gazette.

Employment & Labor

Recent personal injury cases update
Mayer Brown LLP August 30 2010
In this update, we highlight four personal injury cases which may be of particular interest to insurers and/or defendants.

General Practice

Recent personal injury cases update
Mayer Brown LLP August 30 2010
In this update, we highlight four personal injury cases which may be of particular interest to insurers and/or defendants.

Litigation

Recent personal injury cases update
Mayer Brown LLP August 30 2010
In this update, we highlight four personal injury cases which may be of particular interest to insurers and/or defendants.

India

Intellectual Property

Celebrity-focused culture highlights need for statutory right to publicity
Luthra & Luthra Law Offices September 1 2010
Celebrities increasingly seek to protect their publicity and image rights due to the rising commercial value of their fame and identity.

Media & Entertainment

Iran

Banking

OFAC adopts Iranian Financial Sanctions Regulations
Goodwin Procter LLP August 24 2010
OFAC adopted the Iranian Financial Sanctions Regulations (the “IFSR”), 31 C.F.R. Part 561, which impose restrictions on the opening and maintaining of correspondent accounts and payable-through accounts by U.S. financial institutions for foreign financial institutions designated as having engaged in certain specified activities, such as facilitation of Iran’s pursuit of weapons of mass destruction or support for terrorist organizations.

Capital Markets

Trade & Customs

Iran sanctions: U.S. Treasury issues Iranian Financial Sanctions Regulations
Gibson Dunn & Crutcher LLP August 24 2010
On August 16, 2010, the United States Department of the Treasury issued the Iranian Financial Sanctions Regulations ("the IFSR"), 75 Fed. Reg. 49,836, to implement subsections 104(c) and 104(d) of the recent Comprehensive Iran Sanctions Accountability and Divestment Act of 2010 ("CISADA").

White Collar Crime

Ireland

Corporate Tax

Making it easier to invest: Ireland removes requirement for non-resident declarations by fund investors
Dechert LLP August 19 2010
While non-Irish resident investors in Irish Funds are not liable to Irish tax on their income and gains, Irish investors (with a number of exemptions) are so liable and the obligation to withhold this tax rests with the Irish Fund.

Environment

Access to information on litter
Mason Hayes+Curran August 25 2010
The European Communities (Access to Information on the Environment) Regulations 2007 came into operation on May 1, 2007.

Public

Access to information on litter
Mason Hayes+Curran August 25 2010
The European Communities (Access to Information on the Environment) Regulations 2007 came into operation on May 1, 2007.

Israel

Banking

Israeli banks receive instructions on safe socializing
Steptoe & Johnson LLP August 21 2010
Businesses looking for ways to increase efficiency and reach out to the public see a lot to like in Web 2.0 applications and social networking sites.

Information Technology

Intellectual Property

Protecting publicity and image rights in Israel
Luzzatto & Luzzatto Patent Attorneys September 1 2010
There is no codified protection for publicity and image rights in Israel.

Media & Entertainment

Protecting publicity and image rights in Israel
Luzzatto & Luzzatto Patent Attorneys September 1 2010
There is no codified protection for publicity and image rights in Israel.

Italy

Intellectual Property

Power to the people
Bugnion SpA September 1 2010
The relationship between image protection and trademarks is defined by the few articles in the Industrial Property Code that deal specifically with images and personal names in relation to trademarks.

Jamaica

Leisure & Tourism

Jamaica attempts to strengthen Strata law
Baker & Hostetler LLP August 25 2010
Jamaica's Ministry of Tourism responded aggressively to the global economic downturn with its Destination Jamaica program.

Japan

Derivatives

CFTC signs statement of intent with Japanese regulators
Katten Muchin Rosenman LLP August 27 2010
The Commodity Futures Trading Commission has signed a Statement of Intent (SOI) Concerning Cooperation, Consultation and the Exchange of Information with the Ministry of Economy, Trade and Industry of Japan (METI) and the Ministry of Agriculture, Forestry and Fisheries of Japan (MAFF).

Jersey

Corporate Tax

Tax information exchange agreements
Bedell Cristin August 6 2010
Tax Information Exchange Agreements ("TIEAs") are agreements which allow governments to exchange information relevant to their domestic tax laws.

Private Client & Offshore Services

Lebanon

Energy & Natural Resources

Lebanon passes new energy law
Shepherd & Wedderburn LLP August 20 2010
Lebanon's parliament unanimously ratified a long-awaited energy law on Tuesday paving the way for exploration of major natural gas reserves the country says it has identified off the Mediterranean coast.

Luxembourg

Capital Markets

Luxembourg further increases the appeal of its fund center
NautaDutilh August 24 2010
The following two exemptions from the annual subscription tax (taxe d'abonnement) will, without a doubt, attract additional investment fund promoters to Luxembourg:as from the fiscal year 2010 onwards, an exemption will impact both UCIs and specialized investment funds (SIFs) which either invest at least 50% of their assets in one or several microfinance institutions or benefit from the microfinance label from the Luxembourg Fund Labelling Agency.

Corporate Tax

Mexico

E-commerce

The federal law for the protection of personal data finally published in the Federal Official Gazette
Baker & McKenzie August 24 2010
The Mexican Ministry of the Interior published in the Federal Official Gazette the Mexican Federal Law for the Protection of Personal Data in Control of Private Persons (the Data Protection Law).

Environment

Information Technology

Intellectual Property

Mexican image rights under the spotlight
Uhthoff Gómez Vega & Uhthoff SC September 1 2010
The right to be publicly known (or not, as the case may be) is recognised by Article 16 of the Federal Constitution in terms of the interpretation of the fundamental right to privacy and as a limitation to the right of freedom of speech and expression of ideas foreseen in Articles 6 and 7.

Media & Entertainment

Mongolia

Energy & Natural Resources

Netherlands

Company & Commercial

Duties of supervisory board and powers of activist shareholders revisited
Freshfields Bruckhaus Deringer LLP August 23 2010
In its recent decision on ASMI the Supreme Court of the Netherlands confirmed that the strategy of a company is part of the management board's competency.

Competition

Informal advice on full functionality
De Brauw Blackstone Westbroek July 31 2010
The NMa concluded in an informal advice that a joint venture does not automatically qualify as a notifiable full function joint venture if, for an initial start-up period only, it achieves a substantial part of its turnover with third parties.

E-commerce

Intellectual Property

Litigation

New Zealand

Banking

Reserve Bank disclosure review
Chapman Tripp August 23 2010
The Reserve Bank has released a consultation document entitled Review of Disclosure Requirements for Registered Banks (the Review) outlining options to change the disclosure requirements for registered banks.

Capital Markets

Corporate Immigration

Intellectual Property

Champagne law on vodka facts
Chapman Tripp August 18 2010
In Diageo North America Inc v Intercontinental Brands (ICB) Ltd [2010] EWCA Civ 920, the UK Court of Appeal has developed the law of passing off on some intoxicating facts.

Litigation

Non-profit Organizations

Can your charity escape the anti-money laundering regime?
Chapman Tripp August 24 2010
If your charity is at risk of being caught by the provisions of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (the Act), you should be seeking advice now on whether you could qualify for an exemption.

White Collar Crime

Norway

Intellectual Property

Media & Entertainment

Portugal

Intellectual Property

Protecting and enforcing advertising and image rights in Portugal
Garrigues September 1 2010
Every day, public figures and fashion models persuade us to buy different products through advertising.

Media & Entertainment

Romania

Intellectual Property

All change in Romania
Vilau & Mitel September 1 2010
The protection of image rights was first acknowledged in Romania in the 1991 Constitution, but only as a general and indirect principle (as a limit to the freedom of expression).

Media & Entertainment

Russia

Company & Commercial

Is it lawful to dismiss a chief accountant when changing the owner of the company assets?
Littler Mendelson PC August 23 2010
In its recent ruling of May 27, 2010, the Constitutional Court of the Russian Federation stipulated that it is lawful to dismiss the chief accountant in case the owner of the company assets is changed.

Employment & Labor

Intellectual Property

Publicity in Russia – the new old issue
Gorodissky & Partners September 1 2010
Although publicity and image rights might appear to have most in common with copyright, of all IP rights, this is not in fact the case.

Litigation

Media & Entertainment

Trade & Customs

Russian grain export ban: keep cool in the heat
Reed Smith LLP August 9 2010
After mounting speculation during the last few days, Russia, the world's third largest wheat exporter, announced on 5 August 2010 a ban on grain exports for the next four-and-a-half months.

Singapore

Arbitration

Singapore High Court rules against arbitrability of insolvency claims
Allen & Gledhill LLP August 20 2010
The case of Petroprod Ltd (in official liquidation in the Cayman Islands and in compulsory liquidation in Singapore) v Larsen Oil and Gas Pte Ltd [2010] SGHC 186 ("Petroprod Ltd") is significant as the Singapore High Court decided that claims which arise from avoidance provisions in Singapore insolvency laws are non-arbitrable as they exist for the benefit of the general body of creditors as a whole.

Banking

The Singapore High Court’s most recent statement on the law relating to a private bank’s contractual and/or tortious duty to give investment advice
Rajah & Tann LLP August 23 2010
The very recent Singapore High Court descision in Go Dante Yap v Bank Austria Creditanstalt AG [2010] SGHC 220 (HC) ("Go Dante Yap") concerned a claim by the plaintiff customer against the defendant privatye bank for losses sufferd in respect of certain investments made by the plaintiff through the defendant.

Capital Markets

SGX proposes sustainability reporting for listed companies in wake of allegations against listed group
Rajah & Tann LLP August 31 2010
The Singapore Exchange ("SGX") has issued a "Policy Statement on Sustainability Reporting" ("Policy Statement") and proposed a Guide for listed companies to use in formulating their sustainability reporting ("Guide").

Insider trading and the benefits of criminal conduct: part 2 of the Kevin Lew matter
WongPartnership August 20 2010
In 2007, Kevin Lew Chee Fai ("Lew"), a senior employee of WBL Corporation Limited ("WBL"), sold off his shares in WBL relying on financial information disclosed in an internal meeting which had yet to be made public.

Insolvency & Restructuring

Litigation

White Collar Crime

Slovenia

Banking

Trade & Customs

South Africa

Aviation

Airlines to be prosecuted for price fixing
Cliffe Dekker Hofmeyr Inc August 23 2010
The Competition Commission recently referred a complaint against British Airways plc, South African Airways Cargo, Air France Cargo, KLM Cargo, Alitalia Cargo, Cargolux International S.A., Singapore Airlines, Martinair Cargo and Lufthansa Cargo to the Tribunal for adjudication.

Commercial Property

Be on the safe side!
Bowman Gilfillan Inc August 25 2010
Sale agreements should include a clause that provides for a compliance certificate to be provided by the seller where there are permanent gas installations on the property.

Sale of immovable property - agent or functionary?
Cliffe Dekker Hofmeyr Inc August 23 2010
Section 2 of the Alienation of Land Act, No 68 of 1981 (ALA), prescribes certain formalities for the conclusion of a valid agreement for the alienation of land.

Municipal clearance certificates - limit on amounts payable
Cliffe Dekker Hofmeyr Inc August 23 2010
In the matter of Real People Housing, the applicant, Real People Housing (RPH) owned several immovable properties falling within the jurisdiction of the City of Cape Town, the respondent.

The constitutional standing on municipal planning as a function
Cliffe Dekker Hofmeyr Inc August 23 2010
One of the main aims of the legislature is to limit confusion and create certainty amongst parties to whom legislation applies.

Sectional title and retirement housing schemes - the High Court has an important function
Cliffe Dekker Hofmeyr Inc August 23 2010
The Sectional Titles Act No. 95 of 1986 (the STA) and the Housing Development Schemes for Retired Persons Act No. 65 of 1988 (the RPA) are both examples of regulatory and protective enactments and increasingly, they overlap.

Commercial property: don’t max your tax
Cliffe Dekker Hofmeyr Inc August 13 2010
It appears as if people are now again starting to invest with confidence in commercial immovable property.

Company & Commercial

Disposals of property - amendment of Section 228 of the Companies Act
Cliffe Dekker Hofmeyr Inc August 23 2010
Section 228 of the Companies Act 61 of 1973 (the Act ) used to provide that the directors of a company could not, without the authority of the general meeting, enter into a binding agreement to dispose of the whole or substantially the whole of the undertaking of the company or the whole or the greater part of the assets of the company.

The new Companies Act: facing up to the implications
Cliffe Dekker Hofmeyr Inc August 12 2010
The new Companies Act 71 of 2008 is expected to come into force during the last quarter of 2010.

Competition

Sasol's abuse of dominance case settled without imposition of an administrative fine
Cliffe Dekker Hofmeyr Inc August 23 2010
Sasol Chemical Industries Limited (Sasol) has settled (without any admission of guilt) one of its long standing competition battles with the Commission.

Anix and Zedek fined for collusive tendering
Cliffe Dekker Hofmeyr Inc August 23 2010
The Tribunal has confirmed settlement agreements between the Competition Commission and Anix Trading 799 CC (Anix) and Zedek Trading 799 CC (Zedek) respectively.

Tribunal dismisses Media 24's application to set aside the Commission's summons
Cliffe Dekker Hofmeyr Inc August 23 2010
In January 2009 Berkina Twintig (Pty) Ltd (Berkina) filed a complaint against Media 24 Limited (Media 24) for allegedly abusing its dominance.

Second settlement in the scrap metal complaint
Cliffe Dekker Hofmeyr Inc August 23 2010
In April 2008, The New Reclamation Group (Pty) Ltd (Reclam) paid a fine in the amount of R145 972 065 for price fixing, market allocation and exclusive dealing in relation to ferrous and non-ferrous scrap metal.

Corporate Finance/M&A

Cross issue of shares
ENS - Edward Nathan Sonnenbergs August 25 2010
In the current economic climate where third party funding may not be easily available, an issue which merits to be revisited is the tax implications in respect of a cross-issue of shares.

Corporate Immigration

Tax and exchange: control implications of emigration
ENS - Edward Nathan Sonnenbergs August 25 2010
When considering emigration there are tax and exchange control implications that should be considered before leaving the country.

Corporate Tax

Foreign tax recovery
ENS - Edward Nathan Sonnenbergs August 25 2010
Poor infrastructure is often the leading cause for developing countries being targeted by foreign corporations or individuals absconding from their tax liability.

Does an incorrect VAT number invalidate a tax invoice?
ENS - Edward Nathan Sonnenbergs August 25 2010
One of the foundations of a successful Value-added Tax ("VAT") system is that there must be a clear audit trail that reflects the value added by each party throughout the supply chain, on which the VAT is collected.

SARS special project targets employers
ENS - Edward Nathan Sonnenbergs August 25 2010
In an earlier edition, we cautioned employers, that as a result of statements made by the Minister of Finance during the 2010 Budget Speech, that there would be an increased focus on employees' tax this year.

Provisional tax and efiling
Cliffe Dekker Hofmeyr Inc August 20 2010
Provisional taxpayers are reminded of the fact that they have to submit their IRP6 form for the first period by 31 August 2010.

VAT payment as security for transfer duty certificate
Cliffe Dekker Hofmeyr Inc August 20 2010
SARS issued correspondence on 4 August 2010 relating to the application for exemption from transfer duty in terms of Section 9(15) of the Transfer Duty Act 40 of 1949 (Transfer Duty Act) and SARS's request for security.

When to apply for a tax directive from SARS
Cliffe Dekker Hofmeyr Inc August 20 2010
During the course of a tax year many events occur outside the normal monthly payroll run requiring an employer to re-evaluate the position of certain payments with respect to employee's tax.

Try and try again: the new rules on the regional holding company regime
Cliffe Dekker Hofmeyr Inc August 13 2010
A regional holding company regime (or headquarter company regime) is being introduced with a view to encourage foreign investment into South Africa as a gateway for investment into the rest of Africa.

Focus on the payment of remuneration and the deduction of PAYE
Cliffe Dekker Hofmeyr Inc August 13 2010
A special project has been established by the Large Business Centre that focuses on the deduction of PAYE especially in the context of travel allowances and share incentive schemes.

Commercial property: don’t max your tax
Cliffe Dekker Hofmeyr Inc August 13 2010
It appears as if people are now again starting to invest with confidence in commercial immovable property.

Employment & Labor

The rights of non-striking workers
Cliffe Dekker Hofmeyr Inc August 20 2010
The Constitution grants every worker the right to strike.

Energy & Natural Resources

Mining of associated minerals in South Africa and the risks of incomplete applications
Fasken Martineau DuMoulin LLP August 19 2010
The uncertainties related to the mining and marketing of associated minerals in South Africa were recently brought to light when Lonmin, a platinum miner listed in Johannesburg, London and New York, was prohibited by the South African Department of Mineral Resources ("DMR") from selling minerals associated with the mining of platinum group metals but not covered by its mining right.

Litigation

Media & Entertainment

Public

Spain

Intellectual Property

Using trademark registration to protect image rights in Spain
Garrigues September 1 2010
The internationalisation of the exploitation of celebrities' image rights has generated certain problems, as the regulation of this issue is not harmonised around the world.

Media & Entertainment

Projects & Procurement

Reduction of bureaucracy in public contracting
Baker & McKenzie August 24 2010
Order EHA/1490/2010, which regulates the Spanish Official Registry of Bidders and State-Qualified Companies (ROLECE), has come into effect.

Switzerland

Banking

Update on offshore bank secrecy directives by the United States and the Internal Revenue Service : "mining the UBS lake" for US tax evaders
Fox Rothschild LLP August 17 2010
At the present time the good people of the Swiss Federal Tax Administration are sorting out which of the thousands of requested names of US persons and account numbers with UBS will be turned over to the United States shortly in accordance with the U.S.-Swiss agreement.

Corporate Tax

Private Client & Offshore Services

White Collar Crime

United Kingdom

Arbitration

Report published on the role of meditation in planning
Blake Lapthorn August 25 2010
The Planning Inspectorate and the National Planning Forum commissioned an extensive report into the potential role of mediation in relation to planning issues.

Court of Appeal emphasises the role of mediation
Blake Lapthorn August 25 2010
In the recent appeal case of Pennock v Hodgson, a dispute over who owned a stream on the border to two properties, Lord Justice Mummery gave a neat précis of the benefits of mediation, applicable in our view to all disputes:

ACAS reports bumper year for mediation
Blake Lapthorn August 25 2010
The ACAS annual report 2009/2010 published on 26 July 2010 shows that it has been involved in over 900 collective disputes, including the high-profile BA and Royal Mail disputes, with a 94% successful resolution rate.

Settlement at mediation can protect parties
Blake Lapthorn August 25 2010
In the case of Butt v Bradford the Employment Appeal Tribunal confirmed that findings of fact or liability could not be made against parties who were not a party to the proceedings because the claims against them had been compromised at a mediation.

Aedifice vs Mr Ashwin Shah: does the adjudicator have jurisdiction?
Fenwick Elliott Solicitors August 23 2010
In 2006 Mr Shah, the main shareholder and a director of the company Seighford Hall Nursing Home Ltd ("the Company"), obtained planning consents to develop a nursing home and began discussions with a firm of surveyors and property consultants, Aedifice Partnership Ltd ("Aedifice").

Adjudication and contractual interest: TCC guidance
Mills & Reeve LLP July 30 2010
The case of Yuanda (UK) Co. Ltd v WW Gear Construction Ltd (2010) has been one of the most instructive of 2010 so far.

Aviation

No "BAA-n" on flying this August bank holiday
MacRoberts LLP August 27 2010
As you will be aware, it was recently reported that airport workers employed by BAA had voted three to one in favour of strike action in a dispute over pay.

Banking

FSA publishes enforcement report
Denton Wilde Sapte LLP August 27 2010
FSA has published its annual enforcement performance report.

The Double Taxation Treaty passport
Cadwalader Wickersham & Taft LLP August 27 2010
As from 1 June 2010, corporate lenders in jurisdictions with which the UK has a Double Taxation Treaty containing an interest or income from debt claims Article may apply for a Double Taxation Treaty Passport ("Treaty Passport").

FSA signals fundamental changes to trading activity regulation
Katten Muchin Rosenman LLP August 27 2010
On August 25, the UK Financial Services Authority (FSA) published a discussion paper (The Prudential Regime for Trading Activities - a Fundamental Review DP10/4) proposing fundamental changes to the regulation of the trading activities of banks and investment firms.

Tracing claim
Wragge & Co August 25 2010
Where property is obtained by fraud, equity imposes a constructive trust on the recipient so that the property is recoverable and traceable in equity.

Pre-action disclosure
Wragge & Co August 25 2010
An applicant for pre-action disclosure must show that its potential claim is more than merely speculative for an application to succeed.

FSA publishes discussion paper on fundamental changes to trading activity regulation
Alston & Bird LLP August 25 2010
Today, the U.K. Financial Services Authority (FSA) published a discussion paper entitled “The prudential regime for trading activities - a fundamental review” that considers fundamental changes to the regulation of trading activities.

Investing in your children’s future
Morton Fraser August 24 2010
As a parent you will want to ensure that your child has the best possible start in life.

Too soon for optimism in the leveraged buy-out market?
White & Case LLP August 23 2010
In light of recent reports released to the market, a lender in the leveraged loan market would be forgiven for indulging in some cautious optimism.

The abolition of the FSA?
Mills & Reeve LLP July 31 2010
In his Mansion House speech George Osborne, the Chancellor of the Exchequer, said he would abolish the Financial Services Authority and give most of its power to the Bank of England, undoing the regulatory system set up by Gordon Brown when the Labour party came to power in 1997.

New rules on lenders repossessing dwelling houses
Mills & Reeve LLP July 30 2010
Shortly before dissolution the last parliament passed the Mortgage Repossessions (Protection of Tenants etc) Act 2010.

Capital Markets

BBA responds on transaction reporting
Denton Wilde Sapte LLP August 27 2010
BBA has responded to CESR's consultation on transaction reporting.

FSA fines again for transaction reporting failures
Denton Wilde Sapte LLP August 27 2010
FSA has levied its sixth fine for transaction reporting problems.

FSA looks at prudential treatment of trading activities
Denton Wilde Sapte LLP August 27 2010
FSA has published a discussion paper setting out possibilities for fundamental changes to the prudential treatment of trading activities.

BBA responds on TD modernisation
Denton Wilde Sapte LLP August 27 2010
BBA has responded to the Commission consultation on modernising the Transparency Directive.

FSA publishes enforcement report
Denton Wilde Sapte LLP August 27 2010
FSA has published its annual enforcement performance report.

Industry responds on categorisation
Denton Wilde Sapte LLP August 27 2010
BBA, the AFME, ISDA and ICMA have responded to CESR's consultation on client categorisation under MiFID.

Commercial Property

Boundary dispute over strip of driveway ends up in court
DMH Stallard LLP August 25 2010
An argument over a narrow strip of land has left a mother and son facing massive costs after their case was heard in the Court of Appeal recently.

House building in a policy vacuum
Blake Lapthorn August 25 2010
The Secretary of State for Communities and Local Government, Eric Pickles, has now formally revoked all of England's regional spatial strategies (with the exception of The London Plan).

'Garden grabbing' - is it the end?
Penningtons Solicitors LLP August 24 2010
The Government recently announced changes to the planning system with the intention of reducing the infilling and development of existing back gardens, often referred to in the media as 'garden grabbing'.

Consultation of a proposed Long Leases (Scotland) Bill
Morton Fraser August 24 2010
A Consultation has been published by the Scottish Government on reform to the Law on Long Leases in Scotland.

Re-registering right to buy
Morton Fraser August 24 2010
The Agricultural Holdings (Scotland) Act 2003 ("2003 Act") introduced the rights of tenant farmers to register their right to buy the land they tenant in the event that the landlord decides to sell or transfer the tenanted land.

Private landlord registration update
Morton Fraser August 24 2010
Many of the first landlord registrations under the Antisocial Behaviour etc (Scotland) Act 2004 are now up for renewal with local authorities.

Inheritance tax and tenanted farms – increasing relief to 100%
Morton Fraser August 24 2010
For owners of tenanted farmland, 100% Agricultural Property Relief (APR) is available on land subject to a tenancy granted on or after 1 September 1995, and 50% APR is available on land subject to a tenancy granted before 1 September 1995.

Safeguarding your property against fraud
Penningtons Solicitors LLP August 24 2010
Property and land is often the most valuable asset people own.

Re-gearing up
Penningtons Solicitors LLP August 24 2010
The re-gearing (or renegotiation) of the terms of an existing lease has become an increasingly popular option for both landlords and tenants in recent years as both parties seek to agree revised arrangements which satisfy their respective short term and long term needs.

Consultation on changes to the Environmental Impact Assessment Regulations
Nabarro LLP August 24 2010
The Government is consulting on revised, consolidated Environmental Impact Assessment Regulations.

Scottish courts consider when rent will be an administration expense
Shepherd & Wedderburn LLP August 23 2010
Earlier this year the English High Court considered the issue of rent and administration expenses.

The CRC Energy Efficiency Scheme
Hammonds LLP August 19 2010
The CRC Energy Efficiency Scheme (CRC) is a mandatory cap-and-trade scheme that aims to improve energy efficiency and reduce the amount of carbon dioxide emitted by qualifying UK businesses and public sector bodies.

Council that refused meeting with homeless man failed to meet obligations
DMH Stallard LLP August 18 2010
The Court of Appeal has ruled that a man who knew that he and his daughter were about to become homeless, and who wrote to the council seeking its assistance in obtaining accommodation, had done enough to trigger the council's obligation to provide him with assistance and advice.

Wind farm decisions demonstrate benefits and adverse impact balancing act
Bircham Dyson Bell August 16 2010
Today's entry reports on recent onshore wind farm decisions that will be relevant to the new Planning Act regime.

CON29 and the EIR - East Riding and beyond
Cobbetts LLP August 13 2010
In this newsletter, we look at the on-going dispute between local authorities and property search companies relating to charging for local search information, and the application of the Environmental Information Regulation (EIR) to that.

Government has no plans to legislate on private lettings
Mills & Reeve LLP July 30 2010
The Housing Minister, Grant Shapps, announced last month that the Coalition Government has no plans to introduce new legislation to regulate private landlords.

Secure tenant required to give up possession of flat
Mills & Reeve LLP July 30 2010
Wilson v London Borough of Harrow is a decision of the High Court concerning the right of a tenant to remain in council property which she had occupied for some seventeen years.

Getting the big picture right
Mills & Reeve LLP July 30 2010
In response to recent government announcements, design and architecture watchdog CABE has launched a new guide for planners.

Localism again - the demise of regional planning
Mills & Reeve LLP July 30 2010
As Christine de Ferrars Green has noted, our new Government is keeping itself busy putting into action its plans for a "radical reboot" of the planning system.

Company & Commercial

The Groceries Code Adjudicator
Blake Lapthorn August 25 2010
On 3 August 2010, the Department for Business, Innovation and Skills (BIS) announced the Government's decision to establish an independent body to monitor and enforce the revised Groceries Supply Code of Practice (GSCOP) which came into force on 4 February 2010.

How effective is your Retention of Title clause?
Wragge & Co August 24 2010
The case of Bulbinder Singh Sandhu (trading as Isher Fashions UK) v Jet Star Retail Limited (trading as Mark One) (in administration) highlights that care needs to be taken to ensure that Retention of Title (RoT) clauses are effective.

When must a party elect between contractual termination and common law repudiation?
Rajah & Tann LLP August 23 2010
In Shell Egypt West Manzala GmbH v Dana Oil Egypt Ltd [2010] EWHC 465 (Comm), the Plaintiff ("Shell") had both the right to terminate its contract with the Defendant ("Dana") for repudiatory breach, and to terminate under a specific clause of the contract.

Before you charge in - part 8. Say what you really mean: the importance of making your intentions clear in commercial contracts
Wragge & Co August 18 2010
Disputes between parties to a written agreement almost always involve disagreements about the meaning and effect of particular contractual terms.

The Court of Appeal provides guidance on the rules on equitable set-off; Geldof Metaalconstructie NV v Simon Carves Ltd (2010)
Mills & Reeve LLP July 30 2010
Set-off effectively allows one person to deduct from sums he owes to another, amounts that the other person owes to him.

Construction

A step closer? Changes to the Scheme for Construction
Mills & Reeve LLP July 30 2010
With the publication of the consultation on changes to the Scheme on 25 March 2010, we moved one (small) step closer to an amended Construction Act (the Act).

New approved documents for Part L of the Building Regulations
Mills & Reeve LLP July 30 2010
The Communities Department has published the new Part L Approved Documents.

NEC tipster: compensation events
Mills & Reeve LLP July 30 2010
Compensation events can provide fertile ground for disputes.

Corporate Immigration

The consultation on limits on non-EU economic migration: what the MAC has said in its previous reports
Penningtons Solicitors LLP August 26 2010
The deadline of 17 September for submitting responses to the consultation on limits on non-EU economic migration is fast approaching.

Corporate Tax

Summertime blues
Wragge & Co August 25 2010
In its June Budget, the Government announced that it would look at a new, simpler approach to restricting pensions tax relief for high earners based around a new reduced annual allowance.

Changes to HMRC’s manuals indicate a substance over form approach to debt for equity swaps
Macfarlanes LLP August 25 2010
In a recent manual update HMRC indicate that they will adopt a substance over form approach to debt for equity swaps.

Investing in your children’s future
Morton Fraser August 24 2010
As a parent you will want to ensure that your child has the best possible start in life.

Clarity on VAT on charity premises
Mills & Reeve LLP August 17 2010
HMRC has amended the rules on when the VAT option to tax is disapplied on a supply of premises to a charity intended for a relevant charitable use.

Don't miss out on Entrepreneur's Relief
Brodies LLP August 16 2010
Entrepreneur's Relief can give a Capital Gains Tax (CGT) saving of up to £900,000 per person on the sale of a company, but many sellers are missing out because steps are not taken early enough to secure maximum relief.

Ash cloud relief for non-residents
DMH Stallard LLP August 16 2010
HM Revenue and Customs have announced that non-UK resident persons who remained in the UK due to disruption of their travel plans because of the volcanic ash cloud and who, as a result, spent more than 90 days in the UK at one time, will not be treated as becoming UK resident for income tax purposes as a result.

Charitable donations on the up
Blake Lapthorn August 10 2010
Figures from HM Revenue and Customs show that charitable donations from the public have increased by more than 60% over the past five years, despite the recent recession and fears of rising unemployment.

Proposals for changes to unemployment benefit system
Blake Lapthorn August 10 2010
Iain Duncan Smith, the Work and Pensions Secretary has outlined proposals that could see the current system of unemployment benefits scrapped and replaced with a totally new system based on income tax rebates.

Consultation on restricting pensions tax relief from April 2011
Freshfields Bruckhaus Deringer LLP August 6 2010
The government is consulting on its new proposal for restricting pensions tax relief from April 2011.

E-commerce

Government releases cyber crime report
Baker & McKenzie August 24 2010
The House of Representatives Communications Committee has released a report entitled "Hackers, Fraudsters and Botnets: Tackling the Problem of Cyber Crime", following a year-long inquiry into the problem of computer crime and online identity theft and fraud.

Employee Benefits & Pensions

Abolition of DC contracting out: consultation
Nabarro LLP August 25 2010
The DWP has issued consultation on draft consequential amending legislation relating to the abolition of DC contracting out from 6 April 2012.

CPI: DWP consultation on draft PPF/FAS regulations
Nabarro LLP August 25 2010
Following the recent government announcements that the Consumer Price Index (CPI) will be replacing RPI as the basis for calculating inflation linked statutory revaluation and pension increases for all occupational pensions and for PPF and FAS compensation, the DWP has issued a consultation on draft regulations aimed at bringing this change into effect in relation to the PPF and FAS.

Abolition of money purchase contracting-out for pension schemes
Blake Lapthorn August 25 2010
The Department for Work and Pensions has confirmed that it retains its intention to abolish money purchase contracting-out with effect from 6 April 2012, and that it is adhering to the timetable proposed by the previous Government.

From RPI to CPI - implications for staff transfers from the public to the private sector
Wragge & Co August 23 2010
Government plans to use the consumer prices index (CPI) instead of the retail prices index (RPI) for the price indexation of public sector pensions have created uncertainty for public-to-private outsourcing exercises.

Major new proposals from regulator on monitoring employer covenant
Shepherd & Wedderburn LLP August 20 2010
The Regulator describes the covenant as an "employer's legal obligation to fund the pension scheme now and in the future" and has stated that "the strength of it depends upon the robustness of the legal agreements in place and the likelihood that the employer can meet them".

The Regulator’s proposed guidance on monitoring employer covenant
Mayer Brown LLP August 19 2010
The Regulator looks to trustees to put mechanisms in place to monitor employer covenant and market conditions, so they can react to changing situations as they happen.

The liability of employers under scheme contribution rules
Mayer Brown LLP August 19 2010
The High Court has said that scheme contribution rules may "survive" the statutory funding regime ("SFR").

CRC energy efficiency scheme: does it affect directors of trustee companies?
Mayer Brown LLP August 19 2010
If your trustee company is a subsidiary of a parent group which had electricity bills of over £500,000 in 2008 or the pension scheme itself had substantial property holdings which between them ran up electricity bills of around £500,000 in 2008, it may need to register under the CRC Energy Efficiency Scheme ("CRC") or it could face penalties.

A proposed tougher stance on inducement exercises
Mayer Brown LLP August 19 2010
Following rising concern about how transfer incentive exercises have been conducted in the past, the Regulator has published revised guidance on transfer incentives for consultation.

Section 251 of the Pensions Act 2004 - action needed to retain power to pay surplus to employers
Wedlake Bell August 10 2010
Section 251 of the Pensions Act 2004 is headed "Payment of surplus to employer: transitional power to amend schemes".

Coalition government moves forward with abolishing contracting-out for DC schemes
Freshfields Bruckhaus Deringer LLP August 6 2010
The government has confirmed that it will move forward with the previous Labour government's proposal to abolish contracting-out of the State Second Pension (S2P), on a Defined Contribution (DC) basis, by abolishing protected rights from 6 April 2012.

Switch from the retail price index (RPI) to the consumer price index (CPI)
Freshfields Bruckhaus Deringer LLP August 6 2010
The government recently announced in Parliament that it will switch from using the RPI to using the CPI when setting minimum requirements for uprating occupational pension benefits to reflect price inflation.

Consultation on removing the requirement to annuitise by age 75
Freshfields Bruckhaus Deringer LLP August 6 2010
The government is consulting on its commitment (announced in its June 2010 Emergency Budget) to remove, from April 2011, the requirement for Defined Contribution pension scheme members to purchase an annuity by age 75.

TPR consults on updated transfer incentives guidance
Freshfields Bruckhaus Deringer LLP August 6 2010
The Pensions Regulator (TPR) is consulting on new draft guidance on transfer incentives to replace its 2007 guidance on inducements.

Employment & Labor

Rising Employment Tribunal claims – what lessons can charities learn?
Blake Lapthorn August 25 2010
The number of Employment Tribunal (ET) claims has risen by 56% in the last year, according to official statistics recently published by the Tribunals Service.

Abolition of default retirement age: consultation
Nabarro LLP August 25 2010
BIS and the DWP have jointly issued a consultation document on the Government's proposals to abolish the default retirement age (DRA) of 65.

Agricultural wages
Morton Fraser August 24 2010
The Scottish Agricultural Wages Board has proposed new wage rates that will take effect from 1 October 2010.

Agency Workers Regulations to be reviewed
Morton Fraser August 24 2010
I think that this has slipped under the radar slightly (I certainly missed it!) so thought that it was worth highlighting.

Criminal allegations
Howes Percival LLP August 24 2010
One of my employees was allegedly seen committing a criminal act outside work by a colleague, and the police are involved.

Harsukhray Bhatt v Fontain Motors Ltd [2010] EWCA Civ 863
Reynolds Porter Chamberlain LLP August 24 2010
The claimant sustained injuries when he fell from a ladder at work.

Consultation on phasing out the Default Retirement Age
Freshfields Bruckhaus Deringer LLP August 6 2010
The government is consulting on its proposals to "phase out" from 6 April 2011 to 1 October 2011 the Default Retirement Age (DRA) of 65.

Stigma damages only attributable to the dismissal
Cobbetts LLP August 5 2010
The EAT has held that damages for injured reputation will only be awarded where the employee's actual dismissal is the cause of their difficulty in finding new employment.

Agency Worker Regulations 2011
Cobbetts LLP August 5 2010
The Government has announced its intention to review and possibly amend the Agency Worker Regulations which are intended to come into force in October 2011.

Caps on redundancy payment legitimate
Cobbetts LLP August 5 2010
The Employment Appeal Tribunal (EAT) has concluded that a cap on Kraft Foods' 'exceptionally generous' contractual redundancy scheme was justified and did not in fact amount to unlawful indirect age discrimination.

Unfair dismissal time limits
Cobbetts LLP August 5 2010
The EAT has held that it remains reasonably practicable for an employee to file their unfair dismissal claim within the usual time allowed, even though their employer had mistakenly advised them of the time limit.

Latest figures reveal ET system under strain
Mills & Reeve LLP August 5 2010
The tribunal service statistics for 2009/2010 show that over 230,000 claims were lodged in the employment tribunal last year - the highest ever figure.

Default retirement age to go by October 2011
Mills & Reeve LLP August 5 2010
The Government launched a consultation document last week setting out its plans to abolish the default retirement age, which currently allows employers to retire staff compulsorily at 65 without facing age discrimination claims.

October start date for Equality Act confirmed
Mills & Reeve LLP August 5 2010
The Government Equalities Office has confirmed its intention to go ahead with the implementation of the Equality Act 2010 from 1 October 2010.

Ending the default retirement age
Mills & Reeve LLP August 4 2010
Last month the Government launched a consultation paper announcing its intention to end the national default retirement age from April 2011.

Energy & Natural Resources

Community renewables: grant and FITs is permissible
MacRoberts LLP August 26 2010
In our e-update of 5 August, Community Renewable Schemes: A Grant or FITs - But Not Both? we undertook to update you on guidance to be issued by the Department for Energy and Climate Change (DECC) when it was published.

Environment

Managing contaminated land
Reynolds Porter Chamberlain LLP August 25 2010
The Environment Agency (EA) and Defra have collaborated recently to publish guidance on managing contaminated land.

Responsibility deals to improve disposal of business waste
Reynolds Porter Chamberlain LLP August 25 2010
Environment Minister Lord Henley has recently set out plans to help businesses reduce their waste and increase recycling through responsibility deals.

Buncefield trial leads to record fines for pollution offences
Reynolds Porter Chamberlain LLP August 25 2010
The Buncefield explosion on 11 December 2005 led to the largest fire in peacetime Europe.

Businesses need to plan for climate change
Reynolds Porter Chamberlain LLP August 25 2010
Environment Secretary Caroline Spelman is encouraging UK businesses to prepare for the risks and benefit from the opportunities that climate change could bring.

EA consultation on Regulatory Enforcement and Sanctions Act
Reynolds Porter Chamberlain LLP August 25 2010
The results of the EA consultation on how to use powers under the Regulatory Enforcement and Sanctions Act 2008 will be published in the autumn.

Wildlife and Natural Environment Bill
Morton Fraser August 24 2010
The Scottish Government has recently issued their Consultation Report on The Wildlife and Natural Environment Bill and propose to introduce the Bill into the Scottish Parliament during the summer.

Snaring
Morton Fraser August 24 2010
New snaring laws have been introduced by the Scottish Government under the Snares (Scotland) Order 2010 which came into force on 11 March 2010.

FSA investigates meat from offspring of cloned cow
Shook Hardy & Bacon LLP August 20 2010
The U.K. Food Standards Agency (FSA) has announced that meat from a cloned cow’s offspring has evidently entered the food supply, sparking concerns about the country’s livestock registration and tracking requirements.

Deadline time for the UK's Carbon Reduction Commitment
Reed Smith LLP August 11 2010
The latest Government Press Release shows that 1,299 businesses have registered under the UK's Carbon Reduction Commitment (Energy Efficiency) Scheme ('CRC').

General Practice

Panel solicitors and freedom of choice
Penningtons Solicitors LLP August 26 2010
Before Eschig it was accepted that UK legal expenses insurers (LEIs) could insist on the use of their own panel solicitors up to the issuing of proceedings, because of the Insurance Companies (Legal Expenses Insurance) Regulations 1990 (the Regulations), which transpose the European Council Directive 87/344/EEC (the Directive) into English law.

French estate planning for UK residents
Blake Lapthorn August 25 2010
When dealing with inheritance planning in England, one automatically thinks of making a Will.

Prudential v Special Commissioners: Court of Appeal hears arguments on extension of legal professional privilege
Macfarlanes LLP August 25 2010
The question before the court was whether tax advice given to Prudential by a firm of chartered accountants, is covered by legal professional privilege (LPP).

Solicitor's duty of care to client's family
Brodies LLP August 24 2010
A recent opinion from the Court of Session adds further judicial discussion to the contentious issue of whether solicitors owe a duty of care to third parties: McLeod & Ors v. Crawford & Ors [2010] CSOH 101.

Estelle Maria Clarke v Colin Maltby [2010] EWHC 1856 (QB)
Reynolds Porter Chamberlain LLP August 24 2010
The defendant was ordered to pay the claimant's costs of a quantum hearing on an indemnity basis following their conduct at trial.

Government to review “compensation culture”
Reynolds Porter Chamberlain LLP August 24 2010
A report by Lord Young on the effects of excessive health and safety laws and the growth of "compensation culture" - which is due to be published in September 2010 - will recommend, inter alia, banning advertising by personal injury lawyers, robust regulation of health and safety consultants and abolishing conditional fee arrangements in compensation cases.

Control of Dogs Bill
Morton Fraser August 24 2010
The Control of Dogs (Scotland) Bill passed through its final stage at the Scottish Parliament in April.

Reform of Scottish succession law
Morton Fraser August 24 2010
Wills and succession have been in the news lately, with the Scottish Government's announcement that it intends to consult on the recommendations put forward by the Scottish Law Commission for reform of the law of succession.

Esdale v Dover District Council [2010] EWCA Civ 409
Reynolds Porter Chamberlain LLP August 24 2010
The test for determining whether or not the Council had taken reasonable steps to see that visitors were safe did not depend upon what standards the Council had set itself.

Drink driving and contributory negligence
Reynolds Porter Chamberlain LLP August 24 2010
Much has been written in the legal press about the relevance of Darren Best v Damion Smyth [2010] EWCA Civ 204 and the court's approach to interim payments.

Courts won't enforce undocumented 'rights'
DMH Stallard LLP August 19 2010
It is often thought that, when couples live together, they have similar rights to those who are married or in a civil partnership.

Friend must repay inheritance, rules court
DMH Stallard LLP August 13 2010
A will made two months before the death of an elderly woman has been set aside by the High Court after it heard evidence that by 2006, when the new will was made, she was 'seriously losing her grip'.

Court rules that widow can evict daughter
DMH Stallard LLP August 12 2010
A recent case in the Court of Appeal has resulted in a 92-year-old widow being given the right to evict her daughter and son-in-law, after a bitter family dispute that has lasted, on and off, for 20 years.

Healthcare

New Chief Executive and Registrar for the General Osteopathic Council
Blake Lapthorn August 25 2010
On 29 July the GOsC announced that Tim Walker has been named as the Chief Executive and Registrar, due to take up the post in the Autumn.

New director of NMC fitness to practise
Blake Lapthorn August 25 2010
On 29 June the NMC announced the appointment of Jackie Smith as the new Fitness to Practise Director.

Opportunities for the voluntary sector in NHS shake-up
Blake Lapthorn August 25 2010
In a recent speech to Acevo members, the health secretary Andrew Lansley has said that voluntary organisations will have a key role to play in the government's plans for changes to the NHS.

Liberating the NHS
Mills & Reeve LLP July 30 2010
As part of the government's localism agenda the Health Secretary has announced that primary care trusts will be abolished in 2013 with their public health improvement functions being transferred to local authorities.

Information Technology

FSA fines Zurich insurance for loss of customer details
Katten Muchin Rosenman LLP August 27 2010
On August 24, the UK Financial Services Authority (FSA) announced that it had fined the UK branch of Irish company Zurich Insurance Plc (Zurich UK) £2.275 million (approximately $3.5 million) after 46,000 customers’ confidential information was lost.

FSA fines Zurich UK
Edwards Angell Palmer & Dodge August 26 2010
The Financial Services Authority (FSA) has reported that it has fined Zurich UK £2,275,000 for "failing to have adequate systems and controls in place to prevent the loss of customers' confidential information".

How secure is your customer data?
MacRoberts LLP August 25 2010
The Financial Services Authority ("FSA") has imposed a fine of £2.27 million on the UK branch of insurance company Zurich for loss of customer data.

Information Commissioner offers guidance on school photos
Mills & Reeve LLP July 30 2010
The Information Commissioner has recently issued guidance, specifically aimed at Local Education Authorities and those working within the education sector, addressing the confusion surrounding the taking of photographs and videos in educational institutions.

Insolvency & Restructuring

Economic interest required
Wragge & Co August 25 2010
A party cannot appeal a decision made in bankruptcy proceedings by reason only of a personal interest in the outcome.

Insurance & Reinsurance

FSA fines for loss of personal details
Denton Wilde Sapte LLP August 27 2010
FSA has fined Zurich Insurance £2,275,000 for failure to have in place adequate systems and controls to prevent it losing confidential information on 46,000 customers.

FSA publishes enforcement report
Denton Wilde Sapte LLP August 27 2010
FSA has published its annual enforcement performance report.

Museums and insurance: what is the risk?
Reynolds Porter Chamberlain LLP August 25 2010
A review of insurance coverage issues for museums and how it works in practice.

Premature litigation punished by Scottish courts
Brodies LLP August 20 2010
Cameron McNaught looks at a decision from the Court of Session which vindicated insurers in their stance against pre-action conduct and premature litigation.

Intellectual Property

Maker of VODKAT fails to convince Court of Appeal that extended passing off is now too broad
Wragge & Co August 26 2010
The Court of Appeal has upheld the judgment of Arnold J in January that Intercontinental Brands (ICB) passed off its VODKAT product as vodka and thereby caused damage to Diageo, manufacturer of the SMIRNOFF brand of vodka.

Specsavers v ASDA - a real eye-opener?
Herbert Smith LLP August 13 2010
The High Court has held that one of ASDA's marketing straplines used to promote its in-store optician took unfair advantage of Specsavers' Community Trade Marks (CTM) under Article 9(1)(c) of the CTM Regulation, but rejected its infringement claims made under Article 9(1)(b) and for passing-off.

Leisure & Tourism

Rome II - clarification on its way?
Penningtons Solicitors LLP August 26 2010
The interpretation of the wording of EC Regulation 864/2007 (Rome II) has been one of the hot topics in the field of international travel litigation for the past 18 months or so.

Bus and coach travel - are passengers protected?
Penningtons Solicitors LLP August 26 2010
More and more people are going on holiday to Europe by bus and coach transport, as many see it as a cheaper option.

When can a tour operator be held liable for an excursion?
Penningtons Solicitors LLP August 26 2010
Under what circumstances can an injured party bring a claim against a tour operator in the UK to avoid having to bring a claim against a local entity in another country?

Litigation

Tracing claim
Wragge & Co August 25 2010
Where property is obtained by fraud, equity imposes a constructive trust on the recipient so that the property is recoverable and traceable in equity.

Economic interest required
Wragge & Co August 25 2010
A party cannot appeal a decision made in bankruptcy proceedings by reason only of a personal interest in the outcome.

Pre-action disclosure
Wragge & Co August 25 2010
An applicant for pre-action disclosure must show that its potential claim is more than merely speculative for an application to succeed.

Farming family in intestacy challenge
DMH Stallard LLP August 24 2010
The problems which can arise when there is an intestate estate that involves business assets were made clear recently when the High Court had to rule on a complex claim relating back to a death that occurred many years ago.

Harsukhray Bhatt v Fontain Motors Ltd [2010] EWCA Civ 863
Reynolds Porter Chamberlain LLP August 24 2010
The claimant sustained injuries when he fell from a ladder at work.

Does piracy entitle a charterer to put a vessel off hire?
DLA Phillips Fox August 19 2010
In the case of Cosco Bulk Carrier Co Limited v Team-Up Owning Co Limited (the 'Saldanha') [2010] EWHC 1340, Mr Justice Gross in the English High Court recently determined that piracy did not interrupt the hire period in a charter party on the New York Produce Exchange (NYPE) form.

EU procurement again - Sita UK Ltd v Greater Manchester Waste Disposal Authority
Mills & Reeve LLP July 30 2010
Following hot on the heels from the article about EU procurement in the last edition of Building Blocks is the Sita case which concerned the deadline for challenging the award of a tender under Regulation 32(4)(b) of the Public Services Contracts Regulations 1993.

Media & Entertainment

Museums and insurance: what is the risk?
Reynolds Porter Chamberlain LLP August 25 2010
A review of insurance coverage issues for museums and how it works in practice.

Non-profit Organizations

Government plans £40 million fund to support charities working against poverty
Blake Lapthorn August 25 2010
A consultation is currently open on the subject of the Poverty Impact Fund, the £40 million government fund that will offer grants to charitable organisations that help to fight against poverty.

Charity Commission offers advice against fraud
Blake Lapthorn August 25 2010
The Charity Commission has been working with the Serious Organised Crime Agency (SOCA) to help charities and the general public to avoid the kind of fraud that can affect the charitable sector.

Charity rules could cause independent schools to increase fees
Blake Lapthorn August 10 2010
There are fears that the Charity Commission's new public benefit rules could lead to increased school fees, as independent schools struggle to afford to meet the Commission's requirements.

Research shows public trust is high
Blake Lapthorn August 10 2010
Charity Commission research has indicated that the public is becoming increasingly interested in how charities' finances are managed and how effective charities are.

Private Client & Offshore Services

French estate planning for UK residents
Blake Lapthorn August 25 2010
When dealing with inheritance planning in England, one automatically thinks of making a Will.

Product Liability

New animal by-products regulations
Blake Lapthorn August 25 2010
DEFRA is consulting on the new Animal By-Products (Enforcement) (England) Regulations 2011 which will replace the current Animal By-Products Regulations 2005 and make minor amendments to parts of the Transmissible Spongiform Encephalopathies (England) Regulations 2010.

Food from cloned animals
Blake Lapthorn August 25 2010
The Food Standards Agency (FSA) confirmed last week that the meat from three animals that were the offspring of cloned animals had entered the food chain.

Projects & Procurement

Rail freight proposals in the South East rebuffed
Bircham Dyson Bell August 24 2010
One of the 12 types of nationally significant infrastructure project that must now be considered by the Infrastructure Planning Commission (IPC) (with four more to follow) is that of rail freight interchanges (RFIs).

IPC issues two more advice notes
Bircham Dyson Bell August 20 2010
Today's entry reports on two further advice notes issued by the Infrastructure Planning Commission.

Infrastructure Planning Commission publishes its first annual report
Bircham Dyson Bell August 18 2010
Today's entry reports on the first report of the Infrastructure Planning Commission's work.

Development agreements and procurement law
Mills & Reeve LLP July 30 2010
The Office of Government Commerce (OGC) has issued an update to its guidance on development agreements and procurement law following the recent judgment of the European Court of Justice in Case C-451/08 Helmut Müller.

Public

Funding cut for Hampshire children's services
Blake Lapthorn August 25 2010
Hampshire County Council has cut the grant funding available to voluntary organisations from its children's services department by £330,000.

Complaints handling consultation
Brodies LLP August 23 2010
Service providers in the public sector may be interested to note that responses to the Scottish Public Services Ombudsman's (SPSO) consultation document on complaints handling (on their 'statement of complaints handling principles' and a model complaints handling procedure) are due by 8 September 2010.

Scottish Government consults on extending freedom of information to new bodies
Brodies LLP August 12 2010
The Scottish Government is currently consulting on extending the coverage of the Freedom of Information (Scotland) Act 2002 ("FOISA").

National Citizen Service scheme launched
Blake Lapthorn August 10 2010
A National Citizen Service scheme through which teenagers will undertake summer volunteering placements has been outlined by David Cameron as part of a series of projects that are due to start next year.

Shipping & Transport

Trade & Customs

Rural payments agency reclaims overpayments
Mills & Reeve LLP August 3 2010
It has transpired that the RPA has "lost" private details of thousands of farmers.

White Collar Crime

Law Commission says regulators should use criminal powers less
Denton Wilde Sapte LLP August 27 2010
The Law Commission has published a consultation paper looking at how regulators in several sectors, including financial services, use criminal sanctions.

Bribery Act 2010: the UK’s new anti-bribery and corruption law and its interaction with the US Foreign Corrupt Practices Act
Schulte Roth & Zabel LLP August 26 2010
For any organisation doing business in the United Kingdom, the risks relating to corrupt payments will increase markedly beginning in April 2011, when The Bribery Act 2010 (the "Act") takes effect.

Tracing claim
Wragge & Co August 25 2010
Where property is obtained by fraud, equity imposes a constructive trust on the recipient so that the property is recoverable and traceable in equity.

The British are coming! The British are coming! – Preparing for the launch of the Bribery Act of 2010
Reed Smith LLP August 12 2010
The enactment of the United Kingdom's ("UK") Bribery Act of 2010 ("Bribery Act" or the "Act") is the UK's most significant piece of anti-corruption legislation to date.

Bribery Act 2010
Mills & Reeve LLP July 30 2010
The Act was passed on 8 April 2010 and the substantive sections for companies are expected to come into force by this October.

USA

Arbitration

Case remanded to new arbitration panel in light of prior panel’s manifest disregard of law
Jorden Burt LLP August 25 2010
After a second trip to the First Circuit, a district court has held that remand to a new panel of arbitrators is appropriate where the panel's vacated award was earlier held to be in manifest disregard of the law.

Home warranty dispute resolution
Fredrikson & Byron PA August 24 2010
A new law now provides for a dispute resolution process purposed toward resolving disagreements arising from breach of warranty by vendors or home improvement contractors.

Indiana Court of Appeals holds that claim under the Fair Credit Reporting Act survives bankruptcy and must be arbitrated
Frost Brown Todd LLC August 23 2010
On July 26, 2010, the Indiana Court of Appeals, in the published decision of Green Tree Servicing, LLC. ., v. Brian D. Brough, No. 88A01-0911-CV-550, addressed the issue raised by Appellant Green Tree as to whether the trial court erred by vacating its prior Order directing the parties to arbitrate their dispute, which involved a prior bankruptcy filing and a claim under the Fair Credit Reporting Act.

California appellate court: insurer must defend insured in alternative dispute resolution
Morgan Lewis & Bockius LLP August 23 2010
In an important decision, a California appellate court recently held in Clarendon American Insurance Co.

Third Circuit holds that a party cannot “opt out” of the Federal Arbitration Act in its entirety
Jorden Burt LLP August 23 2010
The Third Circuit has affirmed a judgment in favor of several foreign reinsurers confirming arbitration awards against the statutory liquidator (the Pennsylvania Insurance Commissioner) for two insolvent insurance companies, but reversed a sanctions award against the Commissioner.

Ninth Circuit creates split about the meaning of the word "sue" as used in the CROA
Foley & Lardner LLP August 23 2010
The Credit Repair Organizations Act (CROA), found at 15 U.S.C. § 1679, was enacted to ensure consumers of services of credit repair organizations are provided with the information necessary to make informed decisions regarding the purchase of such services; and to protect the public from unfair or deceptive advertising and business practices by credit repair organizations.

Eleventh Circuit rules that party did not waive its right to arbitrate
Edwards Angell Palmer & Dodge August 23 2010
In Citibank, N.A. v. Stok & Associates, P.A., No. 09-13556 (11th Cir. July 20, 2010), the United States Court of Appeals for the Eleventh Circuit ruled that a party did not waive its right to compel arbitration even though it initially participated in the court proceeding.

Fifth Circuit holds defendant waived right to arbitrate by filing motions to dismiss
Jorden Burt LLP August 19 2010
In In re Mirant Corporation, the Fifth Circuit affirmed the lower court's finding that the defendant waived its right to arbitrate.

Tenth Circuit holds post-judgment interest rate in “broad” arbitration provision trumps statutory rate
Jorden Burt LLP August 17 2010
On November 17, 2008, we reported on a Colorado district court's decision in a reinsurance dispute to alter the post-judgment interest rate provided in the arbitration panel's final award and replace it with a statutory rate.

Mediating before litigation or discovery: when does it work?
Porter Wright Morris & Arthur LLP August 13 2010
There are times when parties want to avoid litigation as a means for resolving a dispute.

Homeowner associations and members not necessarily bound by arbitration provisions in CC&Rs or in related purchase agreement where developer is initial declarant
Sheppard Mullin Richter & Hampton LLP August 10 2010
Pinnacle Museum Tower Association v Pinnacle Market Development (US) LLC, No D055422 (4th Dist July 30, 2010) Homeowners and homeowner associations are not necessarily bound by arbitration provisions in a declaration of covenants, conditions and restrictions, or in a related purchase agreement, where the developer is the initial and only declarant.

Supremacy clause and Federal Arbitration Act supersedes Michigan statute prohibiting out-of-state arbitrations
Goldberg Segalla LLP August 3 2010
In a dispute between a franchisor and the franchisee regarding a series of business issues involving the agreement between the parties, the franchisee sought to arbitrate this dispute.

Sixth Circuit determined that bank waived arbitration agreement by actively litigating dispute
Goldberg Segalla LLP August 3 2010
In this action, the mortgagor received a loan from the lender and executed a mortgage on the property.

Fourth Circuit determines that legally objectionable behavior by counsel is not enough to overturn arbitration award
Goldberg Segalla LLP August 3 2010
This appeal arises from a contract dispute concerning the construction of a wastewater treatment plant.

Aviation

FAA re-registration requirement
Foley & Lardner LLP August 25 2010
The FAA has issued a final rule requiring re-registration of all U.S.-registered aircraft on a periodic basis.

Ninth Circuit provides clarity on similarly situated standard for discrimination cases
Dorsey & Whitney LLP August 20 2010
On August 16, 2010, the United States Court of Appeals for the Ninth Circuit affirmed the United States District Court for the District of Arizona's grant of summary judgment in favor of former employer Executive Jet Management ("Executive Management") against three former employees Gregory Hawn, Michael Prince and Aric Aldrich ("Plaintiffs") on their Title VII sex discrimination claims.

Decision in Eclipse Aviation addresses subject matter jurisdiction of the bankruptcy court
Fox Rothschild LLP August 18 2010
On August 4, Judge Mary F Walrath issued an opinion in the Eclipse Aviation bankruptcy that discusses the scope of the Court's subject matter jurisdiction.

Banking

FDIC announces organizational changes
Jones Walker August 31 2010
On August 10, 2010, the FDIC Board of Directors approved the creation of a new Office of Complex Financial institutions ("CFI") and the Division of Depositor and Consumer Protection ("DCP") to help carry out its responsibilities under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

New Illinois law puts credit reports and credit history off limits for most employers and most positions
Littler Mendelson PC August 31 2010
On August 10, Illinois enacted a new state law called the "Employee Credit Privacy Act" that will take effect January 1, 2011.

FRB proposes significant changes to TILA rescission rules
Kahrl Wutscher LLP August 30 2010
The Federal Reserve Board recently proposed revisions to the rules and model disclosures, regarding the disclosure and exercise of the right to cancel under TILA.

FHFA releases first conservator’s report on Fannie Mae and Freddie Mac
Alston & Bird LLP August 27 2010
On Thursday, the Federal Housing Finance Agency (FHFA) released its first Conservator's Report regarding Fannie Mae and Freddie Mac's financial condition.

FRB proposes significant changes to reverse mtg disclosures and ads
Kahrl Wutscher LLP August 27 2010
The Federal Reserve Board recently proposed significant changes to reverse mortgage advertisements and disclosures.

FINRA proposes changes to know your customer and suitability rules
Katten Muchin Rosenman LLP August 27 2010
On August 13, the Securities and Exchange Commission published a notice that the Financial Industry Regulatory Authority proposes to adopt FINRA Rules 2090 (Know Your Customer) and 2111 (Suitability) as part of the Consolidated FINRA Rulebook.

IRS issues welcome guidance regarding treatment of releases of property securing REMIC loans
Sutherland Asbill & Brennan LLP August 26 2010
On August 17, the IRS issued Revenue Procedure 2010-30, much anticipated guidance relating to the release of property securing a loan that is held by a real estate mortgage investment conduit (REMIC).

The Dodd-Frank Act: a look at the immediate impacts
Fredrikson & Byron PA August 26 2010
The landscape of the financial services industry changed drastically on July 21, 2010, when President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).

New Illinois law prohibits use of credit checks for many employment-related purposes
Barnes & Thornburg LLP August 26 2010
Effective Jan. 1, 2011, it will be an unlawful employment practice, except under limited circumstances, for an Illinois employer to use an applicant’s or employee’s credit history in making employment-related decisions.

In search of exceptions to the FTC’s amended telemarketing sales rule - don’t put your neck in a loophole!
Loeb & Loeb LLP August 26 2010
In the days and weeks since the Federal Trade Commission amended the Telemarketing Sales Rule, 16 C.F.R. Parts 310.1-.9, adding specific provisions to govern for-profit debt relief providers (the “TSR Amendments”), there have been many discussions among industry professionals about possible exceptions, or “loopholes,” to the TSR Amendments.

New legislation proposes to make permanent the expansion of bank qualification favorable for 501(c)(3) tax-exempt bonds
Bricker & Eckler LLP August 25 2010
Section 501(c)(3) non-profit organizations that expect to use tax-exempt bonds to finance or refinance future projects should be alert to the Investing in American Jobs and Closing Tax Loopholes Act, HR 5893, a Congressional bill that proposes to extend several favorable bond provisions currently set to expire at the end of the year.

Modifications to the U.S. Federal Reserve's emergency lending authority
Duane Morris LLP August 24 2010
Among other things, the Act amends section 13(3) of the Federal Reserve Act, relating to the U.S. Federal Reserve's emergency lending authority, and requires a one-time audit of the Federal Reserve's loans and financial assistance provided during the period from December 1, 2007, through the date of enactment of the Act.

Ninth Circuit dismisses claims under the CCRAA
Foley & Lardner LLP August 24 2010
In Carvalho v. Equifax Information Services, LLC, No. 09-15030, 2010 W.L. 3239477 (9th Cir., Aug. 18, 2010), the Ninth Circuit affirmed a lower court’s grant of summary judgment dismissing Plaintiff’s claims under the California Consumer Credit Reporting Agencies Act (“CCRAA”).

FFIEC issues guidance on reverse mortgage products
Goodwin Procter LLP August 24 2010
The FFIEC issued guidance addressing compliance and reputation risks surrounding reverse mortgage products.

Dodd-Frank Act ushers in new regulations for mortgage originators
Day Pitney LLP August 24 2010
The Dodd-Frank Wall Street Reform and Consumer Protection Act, which President Obama signed into law on July 21, 2010, will bring about many regulatory changes - some of which are set forth in the Act itself and others that are to be promulgated by federal regulators within the next 30 months.

Too-big-to-fail bailout avoidance provisions
Duane Morris LLP August 24 2010
Title II of the Act, designated "Orderly Liquidation Authority" - effective July 21, 2010 - establishes what is intended to be an orderly liquidation process for "financial companies" whose collapse or potential collapse are determined to constitute a risk to the financial system as a whole.

FDIC approves pilot program for electronic deposit accounts
Goodwin Procter LLP August 24 2010
The FDIC approved a pilot program designed to help meet the needs of underserved communities through participating banks offering electronic deposit accounts with product features identified in the FDIC Model Safe Accounts Template.

House Financial Services Committee holds hearing on state of midwestern banks and credit unions
Alston & Bird LLP August 24 2010
Yesterday, the House Financial Services Committee's Subcommittee on Oversight and Investigations held a field hearing entitled "Too Big Has Failed: Learning From Midwest Banks and Credit Unions."

U.S. financial reform: Mortgage Reform and Anti-Predatory Lending Act
Duane Morris LLP August 24 2010
Title XIV of the Act, designated the "Mortgage Reform and Anti-Predatory Lending Act," establishes minimum standards for originating residential mortgages, regulates the compensation of mortgage brokers and expands consumer protections and lender disclosure requirements.

Financial regulatory reform - changes to regulation of systemic risk
Sonnenschein Nath & Rosenthal LLP August 24 2010
On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Reform Act").

FRB issues final rule on mortgage loan transfer disclosure
Goodwin Procter LLP August 24 2010
The FRB issued a final rule implementing a disclosure requirement for mortgage loan sales and transfers.

FRB proposes additional consumer protections for mortgage loan transactions
Goodwin Procter LLP August 24 2010
The FRB proposed amendments to Regulation Z which would provide additional consumer protections and disclosures for mortgage loan transactions.

FRB issues interim rule on closed-end mortgage disclosures
Goodwin Procter LLP August 24 2010
The FRB issued an interim Regulation Z rule requiring lenders to disclose how borrowers' regular mortgage payments can change over time.

Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010: Congress enacts sweeping financial reform
Duane Morris LLP August 24 2010
On July 21, 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the "Act") became law.

Mortgages: enforceability of instruments securing debt
Fredrikson & Byron PA August 24 2010
The law regarding instruments securing debt has been amended to clarify the amount for which an instrument may be enforced.

Rep. Kanjorski and Rep. Frank urge FHFA to pursue all possible fraud claims on behalf of Fannie and Freddie
Alston & Bird LLP August 24 2010
Last week, Congressmen Paul Kanjorski (D-PA) and Barney Frank (D-MA) sent letters to President Obama encouraging the Federal Housing Finance Administration (FHFA) to pursue claims against private companies that used fraudulent practices to sell loans or securities to Fannie Mae and Freddie Mac.

FRB-NY expands its list of counterparties eligible to participate in reverse repos by adding 26 money market funds
Goodwin Procter LLP August 24 2010
The Federal Reserve Bank of New York (the "FRB-NY") expanded the number of counterparties eligible to participate with the FRB-NY in reverse repurchase agreements.

AIG repays nearly $4 billion to Federal Reserve Bank of New York revolving credit facility
Alston & Bird LLP August 24 2010
Yesterday, AIG announced its largest single cash reduction to the balance of its revolving credit facility with the Federal Reserve Bank of New York ("FRBNY").

CFPA Q&A: how big will the bureau be?
Foley & Lardner LLP August 24 2010
Big.

FTC and DOJ issue revised horizontal merger guidelines but bank merger competitive review guidelines are left unchanged
Goodwin Procter LLP August 24 2010
The Federal Trade Commission and the Department of Justice (the "Agencies") issued major revisions to their Horizontal Merger Guidelines (the "Guidelines"), which replace the Horizontal Merger Guidelines originally issued in 1992 and modified in 1997.

MCIOA update
Fredrikson & Byron PA August 24 2010
The Minnesota Common Interest Ownership Act (MCIOA) has recently undergone a major revision.

Attorney fees awarded under the FDCPA are affirmed
Winston & Strawn LLP August 23 2010
On August 16th, the Tenth Circuit affirmed an attorney fee award to a class representative after settlement of a case alleging violations of the Fair Debt Collection Practices Act.

Mortgage Reform and Anti-Predatory Lending Act
Sonnenschein Nath & Rosenthal LLP August 23 2010
Although it has received far less attention than other titles of the Dodd-Frank Act (the "Act" or "Dodd-Frank"), such as those addressing derivatives, "too big to fail," risk retention and the Bureau of Consumer Financial Protection, Title XIV of the Act, which prescribes a host of new standards for residential mortgage loans, is among the most far-reaching of the legislation.

Banking regulators provide guidance on reverse mortgage products
Winston & Strawn LLP August 23 2010
On August 16th, the federal banking regulatory agencies issued final guidance entitled, "Reverse Mortgage Products: Guidance for Managing Compliance and Reputation Risks".

The Supreme Court of Ohio's statistical summary spotlights increase in foreclosure filings
Frost Brown Todd LLC August 23 2010
Each year, the Supreme Court of Ohio publishes the Ohio Courts Statistical Report and the Ohio Courts Statistical Summary.

Fed targets loan originations
Foley & Lardner LLP August 23 2010
Last week, the Federal Reserve Board announced rules aimed at protecting consumers from what many consumer advocates considered abusive lending practices.

Court contemplates the meaning of "sue"
Winston & Strawn LLP August 23 2010
On August 17th, the Ninth Circuit discussed the meaning of "sue" as used by the Credit Repair Organization Act.

FINRA proposes Consolidated Rules 2090 (Know Your Customer) and 2111 (Suitability)
Winston & Strawn LLP August 23 2010
On August 13th, the Financial Industry Regulatory Authority proposed FINRA Rule 2090 (Know Your Customer) and FINRA Rule 2111 (Suitability), to be part of the Consolidated FINRA Rulebook.

Fair Credit Reporting Act preempts portion of California Credit Reporting Act
Winston & Strawn LLP August 23 2010
On August 18th, the Ninth Circuit held that the federal Fair Credit Reporting Act preempts a California statute governing how consumer credit reporting bureaus investigate and report a disputed credit report.

Pacific Western Bank of California assumes all deposits of Los Padres Bank
Alston & Bird LLP August 23 2010
On Friday, the Office of Thrift Supervision closed Los Padres Bank, headquartered in Solvang, California, and appointed the FDIC as receiver.

Final rule for disclosure relating to the acquisition of legal title to a mortgage loan
Morrison & Foerster LLP August 23 2010
On August 16,2010, the Federal Reserve Board (“Board”) issued two proposed rules and three final rules governing federal Truth-in-Lending Act (“TILA”) requirements for residential mortgage loans.

Will Dodd-Frank mean the end of operating subsidiaries?
Patton Boggs LLP August 23 2010
In 2007, the Supreme Court resolved, or so we thought, the dispute between the Office of the Comptroller of the Currency (and its regulated entities) on the one hand, and state regulators on the other, regarding preemption over state laws for operating subsidiaries of national banks.

Urban Partnership Bank of Illinois assumes deposits of ShoreBank
Alston & Bird LLP August 23 2010
On Friday, the Illinois Department of Financial and Professional Regulation closed ShoreBank, headquartered in Chicago, Illinois, and the FDIC was appointed receiver.

Pennsylvania issues loan modification requirements
Patton Boggs LLP August 23 2010
The Pennsylvania Bureau of Consumer Credit Agencies ("Bureau") recently issued a policy statement regarding mortgage loan modification activities, enrolled as Chapter 47 of the Bureau's regulations.

Modified effective date for Electronic Fund Transfer Act disclosures
Winston & Strawn LLP August 23 2010
On August 17th, the Federal Reserve Board published amendments to Regulation E, which implements the Electronic Fund Transfer Act, and the official staff commentary to the regulation, in order to implement legislation that modifies the effective date of certain disclosure requirements in the gift card provisions of the Credit Card Accountability Responsibility and Disclosure Act of 2009.

Dodd-Frank Act summary on bank capital requirements
Thompson Coburn LLP August 23 2010
The Dodd-Frank Act requires some significant changes to capital requirements for banking organizations.

More on source of income as a protected class
Fox Rothschild LLP August 20 2010
At first glance, the protected classes sound simple enough.

FINRA implements changes to WebCRD/IARD Entitlement Program
Schottenstein Zox & Dunn Co LPA August 20 2010
FINRA is implementing changes to its WebCRD/IARD Entitlement Program - the primary change to the program is the new Super Account Administrator (SAA) role.

Treasury/HUD Conference on the Future of Housing Finance
Orrick Herrington & Sutcliffe LLP August 20 2010
On August 7, Treasury Secretary Geithner made opening remarks at the Conference on the Future of Housing Finance.

New interim rule requiring disclosure of interest rate and payment summary for mortgage transactions
Morrison & Foerster LLP August 20 2010
On August 16, 2010, the Federal Reserve Board (“Board”) issued two proposed rules and three final rules governing federal Truth-in-Lending Act (“TILA”) requirements for residential mortgage loans.

FFIEC releases guidance on reverse mortgages
Orrick Herrington & Sutcliffe LLP August 20 2010
On, August 16, the Federal Financial Institutions Examination Council (FFIEC) released guidance on reverse mortgages.

Fed rules regarding mortgages
Orrick Herrington & Sutcliffe LLP August 20 2010
On August 16, the Fed issued proposed, interim and final rules relating to mortgage loans.

Barclays Bank PLC forfeits $298 million for violations of U.S. economic sanctions; U.S. judge questions use of DPA, lack of individuals prosecuted
Cadwalader Wickersham & Taft LLP August 19 2010
On August 18, 2010, United States District Judge Emmet G. Sullivan of the District of Columbia approved a Deferred Prosecution Agreement (“DPA”) between the Department of Justice and Barclays Bank PLC (“Barclays”), a U.K corporation with headquarters in London.

Seventh Circuit applies Twombly, Iqbal and Erickson pleading requirements to Fair Housing Act claims
Foley & Lardner LLP August 18 2010
In Swanson v. Citibank, N.A., 2010 WL 2977297 (7th Cir. May 26, 2010), the Seventh Circuit applied the pleading requirements under Twombly, Iqbal and Erickson to Fair Housing Act claims.

Federal Reserve proposal for mandatory escrow accounts
Morrison & Foerster LLP August 18 2010
On August 16, 2010, the Federal Reserve Board (“Board”) issued two proposed rules and three final rules governing federal Truth-in-Lending requirements for residential mortgage loans.

Wells Fargo Bank ordered to pay $203 million in overdraft case
Goodwin Procter LLP August 17 2010
Following a two-week bench trial, a federal judge has ordered Wells Fargo Bank, N.A. (the “Bank”) to pay its customers $203 million in restitution for its practice of resequencing posted debit card transactions from highest to lowest dollar amounts, which the court found was an “unfair” and “fraudulent” practice under California consumer protection laws.

Federal gift card law goes into effect August 22, 2010
Winston & Strawn LLP August 17 2010
The federal regulations on gift cards, promulgated under the Credit Card Act of 2009, will go into effect on August 22, 2010.

Court holds plaintiff’s dispute to CRA constitutes an improper collateral attack as to the validity of the underlying debt, grants summary judgment in favor of CRA
Strasburger & Price LLP August 17 2010
Plaintiff, proceeding as a pro se litigant, filed suit against Experian alleging a violation of § 1681i of the FCRA for purportedly failing to conduct a reasonable reinvestigation of Plaintiff’s dispute of an American Express (“AMEX”) business credit card account.

Agencies issue ANPR on alternatives to the use of credit ratings in capital rules
Goodwin Procter LLP August 17 2010
The FDIC, the OCC and the FRB (the "Agencies") issued a joint advance notice of proposed rulemaking (the "ANPR") regarding alternatives to the use of credit ratings in the Agencies' risk-based capital rules for banking organizations.

The consumer financial protection act's provisions on preemption
Foley & Lardner LLP August 16 2010
The Dodd-Frank Wall Street Reform and Consumer Protection Act (CFPA) directly addresses its own preemptive effect on State law and amends the National Bank Act to clarify the standards that apply to national banks.

FDIC defeats age discrimination claims
Winston & Strawn LLP August 16 2010
On August 13th, the D.C. Circuit Court of Appeals affirmed summary judgment for the FDIC in an age discrimination case brought by a group of former FDIC employees.

Lender's representation that borrower "qualified" for loan not a representation borrower could "afford" a loan
Sheppard Mullin Richter & Hampton LLP August 16 2010
Is a lender's representation to a borrower that the borrower can "qualify" for a mortgage loan a representation that the borrower can also "afford" the loan?

New gift card rules to take effect on August 22, 2010 and disclosure requirements will now take effect on January 31, 2011
Kelley Drye & Warren LLP August 12 2010
This is an update to an earlier post regarding the Federal Reserve Board's final rules implementing the gift card provisions of the Credit Card Accountability Responsibility and Disclosure Act of 2009 ("CARD Act").

Seventh Circuit limits scope of FACTA
Foley & Lardner LLP August 12 2010
On August 10, 2010, the Seventh Circuit in Shlahtichman v. 1-800 Contacts, Inc., held that the Fair and Accurate Credit Transactions Act of 2003’s (“FACTA”) prohibition from printing more than the last five digits of a credit card number or its expiration date on a receipt did not apply when the receipt was provided by email.

Third Circuit reverses dismissal of RESPA 8(b) markup claim
Foley & Lardner LLP August 12 2010
In Tubbs v. North American Title Agency, Inc., No. 09-2757, 2010 U.S. App. LEXIS 16342, 2010 WL 3044067 (3d Cir. Aug. 5, 2010), the Third Circuit held that a lower court erred in dismissing a RESPA Section 8(b) claim.

ISDA agreements between banks and Mexican corporation are enforceable despite illegality defense due to choice of law clause in agreements
Sheppard Mullin Richter & Hampton LLP August 9 2010
In four related cases, Merrill Lynch Capital Markets AG and Merrill Lynch Capital Services, Inc. v. Controladora Comercial Mexicana S.A.B. De C.V., Index No. 603214/2008 (Sup. Ct., NY County, March 16, 2010), JPMorgan Chase Bank, N.A. v. Controladora Comercial Mexicana S.A.B. De C.V., Index No. 603215/2008 (Sup. Ct., NY County, March 16, 2010), J. Aron & Company v. Controladora Comercial Mexicana S.A.B. De C.V., Index No. 603225/2008 (Sup. Ct., NY County, March 16, 2010), and Barclays Bank PLC v. Controladora Comercial Mexicana S.A.B. De C.V., Index No. 603233/2008 (Sup. Ct., NY County, March 16, 2010), Justice Eileen Bransten recently granted summary judgment on liability to the plaintiffs against Controladora Comercial Mexicana S.A.B. De C.V. (“CCM”), one of Mexico’s largest retailers and the operator of approximately 200 stores and 70 restaurants.

Bank of New York not liable due to court's application of the imposter rule
Sheppard Mullin Richter & Hampton LLP August 9 2010
On July 14, 2010, Justice Bernard J Fried granted Bank of New York's motion to dismiss a complaint alleging conversion in connection with the cashing of false checks.

Illinois enacts statewide HAMP compliance requirement
Kahrl Wutscher LLP July 30 2010
As referenced in our prior update below, the Illinois legislature passed an amendment to its foreclosure statute allowing a borrower to undo a foreclosure sale if the borrower proves s/he applied for a HAMP loan modification, and that the property was nevertheless sold in material violation of the HAMP program guidelines.

Feds issue SAFE Act final rules
Kahrl Wutscher LLP July 28 2010
Various federal banking agencies issued the final rules regarding the registration requirements under the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act) for residential mortgage loan originators who are employees of national and state banks, savings associations, Farm Credit System institutions, credit unions, and certain of their subsidiaries.

Wa Sup Ct says supposed contract-based claim re: fax/notary fees not preempted under HOLA
Kahrl Wutscher LLP July 25 2010
The Supreme Court of Washington recently held that state contract and consumer protection claims regarding fax and notary fees charged by a federal savings bank were not preempted under HOLA.

Cal app ct upholds dismissal of elder abuse claims
Kahrl Wutscher LLP July 22 2010
A California appellate court recently upheld the dismissal of allegations against a bank that had extended a mortgage loan to plaintiff's elderly and disabled father, and allowed plaintiff's father to make several fraudulent money transfers from his bank account, claiming: (1) negligence per se based on the bank's alleged failure to report under reporting requirements of elder abuse statues; (2) breach of fiduciary duty or negligence in connection with the loan and fund transfers;and (3) for financial abuse of an elder under elder abuse statutes .

Successful mortgage default litigation requires experienced counsel to navigate complex array of new claims
Prince Lobel Glovsky & Tye LLP July 20 2010
Default litigation in Massachusetts and throughout New England is a hotbed of new terms, novel claims, and intense judicial scrutiny of lending and foreclosure practices.

Capital Markets

SEC proposes new regulatory framework governing mutual fund distribution fees to replace Rule 12b-1
Alston & Bird LLP August 30 2010
On July 21, 2010, the Securities and Exchange Commission (SEC) voted unanimously to propose new rule and rule and form amendments under the Investment Company Act of 1940 (the "1940 Act"), the Securities Act of 1933 (the "Securities Act") and the Securities Exchange Act of 1934 (the "Exchange Act"), each as amended, regarding the regulation of distribution fees paid by registered open-end management investment companies, or mutual funds (the "Proposal").

No showing of loss or materiality needed at class certification stage according to United States Court of Appeals for the Seventh Circuit
Mayer Brown LLP August 30 2010
The United States Court of Appeals for the Seventh Circuit has issued an opinion that relieves plaintiffs in securities litigation from making any showing of loss or materiality at the class certification stage.

Proxy access for director elections
McKenna Long & Aldridge August 30 2010
As part of its meeting held on August 25, 2010, the Securities and Exchange Commission adopted changes to the federal proxy rules to expand the rights of shareholders to nominate directors on corporate boards.

New Jersey settles with SEC but question remains: who’s next?
Squire Sanders & Dempsey LLP August 27 2010
On August 18, 2010 the US Securities and Exchange Commission issued Release No 33-9135, a cease and desist order (the Order) settling claims against the state of New Jersey as a result of what the SEC determined was inadequate disclosure of the financial condition of New Jersey's pension funds.

SEC adopts new rules mandating shareholder access to proxy statements
Alston & Bird LLP August 27 2010
On Wednesday, invoking in part authority provided in Section 971 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Securities and Exchange Commission adopted, by a vote of 3-2, new rules that give shareholders unprecedented access to a company's proxy statement.

FINRA proposes to reinstitute short exempt marking for trade reporting and OATS
Katten Muchin Rosenman LLP August 27 2010
On August 20, the Securities and Exchange Commission published a notice that the Financial Industry Regulatory Authority proposes to adopt rule changes to its trade reporting and Order Audit Trail System (OATS) in response to recent amendments to SEC Regulation SHO.

SEC finalizes new proxy access rule
Porter Wright Morris & Arthur LLP August 27 2010
Earlier this week, the SEC finalized a new proxy access rule for 3% shareholders (or larger) that was first proposed over a year ago.

SEC adopts proxy access rules
Ballard Spahr LLP August 27 2010
On August 25, 2010, under the authority granted in Section 971 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the U.S. Securities and Exchange Commission adopted landmark Proxy Access Rules by a 3-to-2 vote.

SEC adopts shareholder access rules
Katten Muchin Rosenman LLP August 27 2010
On August 25, the Securities and Exchange Commission adopted final rules, effective 60 days following publication in the Federal Register, permitting shareholders or groups of shareholders to access the proxy statements of public companies for the purpose of nominating directors.

Stay of discovery under PSLRA does not apply during all motions to dismiss
Katten Muchin Rosenman LLP August 27 2010
Plaintiff brought a claim for securities fraud against a medical device corporation and certain employees, officers and board members of the corporation.

SEC adopts rules requiring proxy access
Taft Stettinius & Hollister LLP August 27 2010
On August 25, 2010, the SEC adopted, by a partisan 3-2 vote, final rules on proxy access.

SEC adopts mandatory proxy access
Sonnenschein Nath & Rosenthal LLP August 27 2010
At an open hearing on August 25, 2010 the SEC, as expected, adopted amendments to its proxy rules providing for inclusion of shareholder nominees in company proxy statements.

SEC adopts controversial proxy access rules
McDermott Will & Emery August 27 2010
After the enactment of the Dodd-Frank financial reform bill confirmed its authority to do so, the SEC moved quickly and has adopted proxy access rules—though the debate on this issue is far from over.

Dodd-Frank measures affecting credit rating agencies
Dechert LLP August 26 2010
Subtitle C of Title IX of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act") reflects Congressional findings that credit ratings are systemically important and that "inaccurate" credit ratings played a role in the mismanagement of risk by large financial institutions and investors, which contributed to the crisis in the financial markets.

SEC adopts new proxy rules implementing proxy access
Sidley Austin LLP August 26 2010
On August 25, 2010, the Securities and Exchange Commission adopted, by a 3-2 vote, amendments (the "Amendments") to the federal proxy rules that will implement a system of "proxy access."

SEC adopts final rules to enhance shareholder access to companies’ proxy materials
Katten Muchin Rosenman LLP August 26 2010
On August 25, the Securities and Exchange Commission adopted final rules, effective 60 days following publication of the rules in the Federal Register (expected shortly), which facilitate the ability of shareholders of a public company to nominate candidates for election as directors in opposition to the board's recommended nominees.

Attention public companies - you have about 60 days to understand the proxy access rules
Leonard Street & Deinard August 26 2010
As many know, the SEC adopted the proxy access rules on August 25, 2010.

SEC adopts mandatory proxy access for shareholders
McGuireWoods LLP August 26 2010
By a 3-2 vote on Aug. 25, 2010, the Securities and Exchange Commission (SEC) approved new rules (Release Nos. 33-9136; 34-62764; IC-29384; File No. S7-10-09) adopting proxy access.

2011 proxy season: the first 100 days—how to get ready for the brave new world of say on pay and proxy access
Latham & Watkins LLP August 26 2010
On August 25, by a 3-2 vote, the SEC ushered in a new era in the company-shareholder relationship when it adopted its final proxy access rules.

SEC adopts amendments to Form ADV Part 2
Locke Lord Bissell & Liddell LLP August 26 2010
Ten years after it was originally proposed, the Securities and Exchange Commission (the "SEC") recently adopted long-anticipated amendments to Part 2 of Form ADV1 - the uniform form used by investment advisers to register with both the SEC and state securities authorities.

When the hedge fails
Day Pitney LLP August 25 2010
Hedge-fund managers can become fiduciaries of their investors, opening them up to prosecution under the antifraud provisions of the federal Investment Advisers Act, 15 U.S.C. § 80b-6.

SEC adopts final proxy access rules
Cleary Gottlieb Steen & Hamilton LLP August 25 2010
On August 25, the SEC adopted final "proxy access" rules by a 3-2 vote.

The Third Circuit rejects the "fraud-created-the-market" theory for presuming reliance in a private securities fraud action
Buchanan Ingersoll & Rooney PC August 25 2010
In affirming the denial of a securities fraud class certification, the Third Circuit flatly rejected the "fraud-created-the-market" theory as a basis for establishing a presumption of reliance to satisfy the requirements of a Section 10(b) claim and thus the predominance requirement of Rule 23(b)(3).

SEC staff provides money market funds with no-action relief from the NRSRO designation requirements of Rule 2a-7
Drinker Biddle & Reath LLP August 25 2010
The staff of the Securities and Exchange Commission (Commission) has issued a no-action letter to the Investment Company Institute stating that it would not recommend that the Commission institute an enforcement action under section 2(a)(41) of the Investment Company Act of 1940 (1940 Act) if a money market fund board did not designate nationally recognized statistical rating organizations (NRSROs) or make related disclosures in its statement of additional information (SAI) before the Commission has completed its review of rule 2a-7 required by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).

Comments on SEC study regarding obligations of brokers, dealers, and investment advisers
Leonard Street & Deinard August 25 2010
In a recent posting we highlighted issues surrounding the imposition of a fiduciary standard on broker-dealers.

SEC adopts amendments that overhaul Form ADV Part 2
Katten Muchin Rosenman LLP August 25 2010
The Securities and Exchange Commission (SEC) has adopted amendments to Form ADV Part 2 and related rules (Amendments).

SEC adopts “shareholder access” rules
Covington & Burling LLP August 25 2010
Today, by a 3-2 vote and with explicit authority granted to it under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the U.S. Securities and Exchange Commission (“SEC”) adopted amendments to its proxy rules that will require that a public company include in its proxy materials candidates to the board who have been nominated by shareholders who meet certain conditions.

U.S. SEC adopts final rules on proxy access
Gibson Dunn & Crutcher LLP August 25 2010
Today the US Securities and Exchange Commission ("SEC") adopted amendments to its proxy rules to permit shareholders to nominate directors in a company's proxy materials--commonly referred to as "proxy access."

FINRA hearing panel decides clearing firm’s overall AML program was adequate and reasonable, but some aml procedures were deficient
Schulte Roth & Zabel LLP August 24 2010
On March 5, 2010, a Financial Industry Regulatory Authority (“FINRA”) Hearing Panel (“Hearing Panel”) issued a decision in which it found that the anti-money laundering (“AML”) procedures implemented by Alabama-based Sterne, Agee & Leach, Inc. (“Sterne” or the “Firm”), a regional clearing firm, from April 2002 through July 2005, and in most respects, for the period from July 2006 to April 2007,were reasonably designed to achieve and monitor compliance with the AML laws, as required by NASD Conduct Rule 3011.

SEC staff temporarily suspends requirement that money market fund boards must designate NRSROs
Goodwin Procter LLP August 24 2010
The Staff (the "Staff") of the SEC's Division of Investment Management recently wrote to the Investment Company Institute (the "ICI") announcing that it would not recommend enforcement action if a money market fund board did not designate at least four nationally recognized statistical rating organizations ("NRSROs") whose ratings would be used by the fund to determine the eligibility of portfolio securities for the purposes of Rule 2a-7 under the Investment Company Act of 1940.

FINRA proposes amendments to suitability and know your customer rules
Goodwin Procter LLP August 24 2010
The SEC published a proposal by FINRA to adopt FINRA Rule 2111 (Suitability) and FINRA Rule 2090 (Know Your Customer) as part of the Consolidated FINRA Rulebook.

Whistleblowing galore under the Dodd-Frank Act
Porter Wright Morris & Arthur LLP August 24 2010
Congress' recent passage and President Obama's signing of the "Dodd-Frank Wall Street Reform and Consumer Protection Act" provides significant incentives for financial industry whistleblowers to assist the government root out fraudulent practices and other unlawful conduct in the industry.

Dodd-Frank Act: elimination of rating agency protections
Weil Gotshal & Manges LLP August 24 2010
The Dodd-Frank Wall Street Reform and Consumer Protection Act has repealed Rule 436(g) promulgated under the Securities Act of 1933, as amended, thereby eliminating the exemption from the expert consent and liability provisions under the Securities Act for any credit ratings issued by a "nationally recognized statistical rating organization".

The SEC’s difficult task in defining a “venture capital fund”
Leonard Street & Deinard August 24 2010
Section 407 of the Dodd-Frank Act provides an exemption from registration as an investment adviser if the investment adviser provides advice solely to one or more venture capital funds.

SEC to consider proxy rule amendments relating to shareholder nomination of directors
Goodwin Procter LLP August 24 2010
The SEC announced that the agenda for its open meeting scheduled for Wednesday, August 25, 2010, consists of considering whether to adopt changes to its rules designed to facilitate shareholder nomination of directors.

Notice requirements for broker-dealers
Leonard Street & Deinard August 24 2010
With respect to the borrowing of securities from customers, Section 929X of the Dodd-Frank Act imposes the following two additional requirements on broker-dealers: (i) every registered broker or dealer must provide notice to its customers that they may elect not to allow their fully paid securities to be used in connection with short sales and (ii) if a broker or dealer uses a customer's securities in connection with short sales, the broker or dealer must provide notice to its customer that the broker or dealer may receive compensation in connection with lending the customer's securities.

U.S. financial reform: corporate governance and executive compensation provisions for public companies
Duane Morris LLP August 24 2010
The corporate governance provisions discussed in this Alert require shareholder proxy access, expand compensation disclosure, institute say-on-pay votes, prohibit brokers from voting street-name shares on say-on-pay and other significant matters, mandate membership and operation of compensation committees, strengthen proxy disclosure, and amend securities transaction reporting under sections 13 and 16 of the Securities Exchange Act of 1934.

CFPA Q&A: how big will the bureau be?
Foley & Lardner LLP August 24 2010
Big.

SEC approves proposed amendments and interpretations
Winston & Strawn LLP August 23 2010
On August 13th, the SEC granted accelerated approval to the Municipal Securities Rulemaking Board's proposed amendment to Rule G-8 (Books and Records to be Made by Brokers, Dealers and Municipal Securities Dealers), Rule G-9 (Preservation of Records), and Rule G-11 (New Issue Syndicate Practices); proposed interpretation of Rule G-17 (Conduct of Municipal Securities Activities); and proposed deletion of a previous Rule G-17 Interpretive Notice.

FINRA issues guidance on trade modifier
Winston & Strawn LLP August 23 2010
On August 19th, the Financial Industry Regulatory Authority issued new guidance on the use of the weighted-average price/special pricing formula (.W) trade modifier for reporting certain types of OTC trades in NMS stocks to FINRA.

Madoff and charities: some due diligence on the investment adviser for Howard Hughes Medical Institute - Ivy Asset Management LLC - Installment 34
Fox Rothschild LLP August 23 2010
This is the thirty-fourth in a series of Installments on this blog that discusses issues that arose in the aftermath of the Bernard L. Madoff (“Madoff”) scandal.

SEC seeks comment on IFRS issues
Winston & Strawn LLP August 23 2010
On August 12th, the SEC requested comment on behalf of the staff on topics related to its ongoing consideration of incorporating International Financial Reporting Standards into the financial reporting system for U.S. issuers.

Third Circuit rejects "fraud created the market" theory
Winston & Strawn LLP August 23 2010
On August 16th, the Third Circuit, addressing an issue of first impression in that Circuit, rejected the "fraud created the market" theory for establishing reliance in a securities fraud action.

Securities fraud lawsuit dismissed
Winston & Strawn LLP August 23 2010
On August 16th, a federal district court dismissed a putative class action securities fraud complaint alleging that defendants made material misrepresentations about the adequacy of a subsidiary's loss reserves and the quality of its loan portfolio.

NYSE and NYSE Amex propose co-location prices
Winston & Strawn LLP August 23 2010
On August 16th, the SEC provided notice of the New York Stock Exchange's and NYSE Amex's proposed amendments to their respective price lists to identify fees pertaining to co-location services, which allow users to rent space on exchange-controlled premises in order to locate their electronic servers in close physical proximity to each exchange's trading and execution systems.

Comments requested on proposed “key definitions” of the Wall Street Reform and Consumer Protection Act
Mayer Brown LLP August 23 2010
On August 20, 2010, the US Commodity and Futures Trading Commission (CFTC) and the US Securities and Exchange Commission (SEC) published their joint Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register seeking public comments on the so-called "Key Definitions" of the Wall Street Transparency and Accountability Act (the Act), which is Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

D.C. Circuit vacates proposed fee for NYSE Arca "depth-of-book" data and remands to SEC for further review
Sheppard Mullin Richter & Hampton LLP August 23 2010
In NetCoalition v Securities & Exchange Commission, No 09-1042 (DC Cir Aug 6, 2010), the United States Court of Appeals for the District of Columbia Circuit held that the Securities & Exchange Commission ("SEC" or "Commission") failed adequately to explain the basis of, and failed to provide adequate support for, its approval of a proposed fee by NYSE Arca for access by investors to its proprietary "depth-of-book" product, Arcabook.

The fraud-on-the-market theory of reliance
Winston & Strawn LLP August 23 2010
On August 20th, the Seventh Circuit affirmed a district court's finding that shares issued by Conseco qualify for the fraud-on-the-market presumption of reliance in a class action securities fraud lawsuit against Conseco's executives.

SEC provides guidance for small issuers using shelf registration statements
Holland & Knight LLP August 23 2010
Pursuant to General Instruction I.B.6 of Form S-3, companies with a market capitalization of less than $75 million may still use Form S-3 to register primary offerings of securities for an amount equal to up to one-third of their market capitalization in any 12-month period.

SEC issues CDIs for foreign private issuers
Holland & Knight LLP August 23 2010
On August 12, 2010, the SEC issued five new CDIs addressing issues that arise when a foreign private issuer or foreign issuer transitions into a domestic registrant.

MSRB proposes subscription service to short system
Winston & Strawn LLP August 23 2010
On August 17th, the SEC provided notice of the Municipal Securities Rulemaking Board's proposal to establish a subscription to the information collected by the MSRB's Short-term Obligation Rate Transparency System.

Dodd-Frank Wall Street Reform and Consumer Protection Act - application to foreign private issuers
Dorsey & Whitney LLP August 23 2010
On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act") into law.

Court addresses attorney fee awards
Winston & Strawn LLP August 23 2010
On August 18th, the Ninth Circuit addressed the manner in which attorney fees should be reviewed in settled class action securities fraud cases.

SEC and CFTC hold roundtable discussion on clearing and listing of swaps and security-based swaps
Alston & Bird LLP August 22 2010
On Friday, the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) held a roundtable discussion on "issues related to governance and conflicts of interest in the clearing and listing of swaps and security-based swaps."

The Second Circuit declines to extend rigorous "willfulness" standard from insider trading cases to plain vanilla securities fraud prosecutions
Fox Rothschild LLP August 20 2010
In a series of insider trading cases, the Second Circuit has appeared to hike the government's burden of proof in showing the "willfulness" of conduct needed for conviction by requiring evidence that a defendant acted with the knowledge that he was violating the securities laws.

MSRB request for comment on underwriting activities of financial advisors
Orrick Herrington & Sutcliffe LLP August 20 2010
On August 17, the Municipal Securities Rulemaking Board issued a request for comment on draft amendments to Rule G-23, which would prohibit any broker, deal or municipal securities dealer acting as a financial advisor to an issuer in connection with a new issue of municipal securities from also acting as underwriter for such issuance.

CFTC and SEC publish joint advance notice of proposed rulemaking on swaps regulation
Katten Muchin Rosenman LLP August 20 2010
The Commodity Futures Trading Commission and the Securities and Exchange Commission have issued a joint advance notice of proposed rulemaking (the Joint Notice) seeking public comment regarding the agencies' mandate to regulate swaps and security-based swaps under the Dodd-Frank Wall Street Reform and Consumer Protection Act.

SEC to consider proxy access rules next week
Katten Muchin Rosenman LLP August 20 2010
On August 18, the Securities and Exchange Commission provided notice that at an open meeting on August 25, the Commission will consider whether to adopt changes to the federal proxy and other rules to facilitate director nominations by shareholders.

Third Circuit rejects a “fraud created the market” theory for presumption of reliance in federal securities fraud class actions
Edwards Angell Palmer & Dodge August 20 2010
In a ruling last week that should help to limit federal securities fraud class actions, the U.S. Court of Appeals for the Third Circuit squarely rejected use of the “fraud created the market” theory to establish presumption of the essential element of reliance in securities fraud claims.

SEC announces plain English standards for RIA brochures
Schottenstein Zox & Dunn Co LPA August 20 2010
On July 21, the SEC voted unanimously to adopt changes to the "brochure" rule requiring SEC registered investment advisers to provide specific disclosures to existing and prospective clients.

Private Fund Investment Advisers Registration Act of 2010
Schottenstein Zox & Dunn Co LPA August 20 2010
On July 21, the Private Fund Investment Advisers Registration Act of 2010 was enacted as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Act).

CFTC and SEC accepting comments on Dodd-Frank rulemaking
Sutherland Asbill & Brennan LLP August 19 2010
A Herculean effort is underway to implement the myriad regulatory changes mandated or authorized by passage of the Dodd-Frank Wall Street Transparency and Accountability Act of 2010 (Act), as Federal regulators feverishly work to develop the numerous rules and regulations within required time periods.

SEC and CFTC commence rulemaking regarding key swap definitions and the regulation of mixed swaps
Alston & Bird LLP August 19 2010
Last Friday, the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) announced a joint advance notice of proposed rulemaking regarding the definitions of key terms relating to the regulation of swaps and security-based swaps (within the meaning of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)) and to solicit views on the regulation of "mixed swaps.

SEC to consider shareholder nominations of directors at meeting next Wednesday
Davis Wright Tremaine LLP August 18 2010
The SEC is set to consider shareholder proxy access for nominations of directors next Wednesday.

Federal court of appeals for the Ninth Circuit holds that there is no implied private right of action under Section 13(a) of the Investment Company Act of 1940
Goodwin Procter LLP August 17 2010
Addressing an interlocutory appeal of Northstar Financial Advisors v. Schwab Investments, 609 F. Supp. 2d 938 (N.D. Cal. 2009), the U.S. Court of Appeals for the Ninth Circuit (the “Court”) held that the SEC alone may enforce Section 13(a) of the Investment Company Act of 1940 (the “1940 Act”).

Adoption of supplemental standards of ethical conduct for members and employees of the Securities and Exchange Commission and revisions to the commission's ethics rules - effective August 19th, 2010
Winston & Strawn LLP August 16 2010
The Securities and Exchange Commission, with the concurrence of the Office of Government Ethics, is adopting supplemental standards of ethical conduct for the SEC's members and employees.

FINRA proposes amendment to Rule 5190 (notification requirements for offering)
Winston & Strawn LLP August 16 2010
On August 9th, the Financial Industry Regulatory Authority proposed an amendment to FINRA Rule 5190, which imposes notice requirements on members participating in distributions to ensure that FINRA receives timely information for its Regulation M compliance program, to change the timing of the notices.

Political contributions by certain investment advisers - effective September 13th, 2010
Winston & Strawn LLP August 16 2010
The Securities and Exchange Commission is adopting a new rule under the Investment Advisers Act of 1940 that prohibits an investment adviser from providing advisory services for compensation to a government client for two years after the adviser or certain of its executives or employees make a contribution to certain elected officials or candidates.

Amendments to Form ADV - effective October 12th, 2010
Winston & Strawn LLP August 16 2010
The Securities and Exchange Commission is adopting amendments to Part 2 of Form ADV, and related rules under the Investment Advisers Act, to require investment advisers registered with the SEC to provide new and prospective clients with a brochure and brochure supplements written in plain English.

No private right of action under Investment Company Act
Winston & Strawn LLP August 16 2010
On August 12th, in a case of first impression, the Ninth Circuit Court of Appeals followed the Second Circuit in holding that there is no private cause of action to enforce Section 13(a) of the Investment Company Act of 1940.

Sanjay Kumar conviction upheld
Winston & Strawn LLP August 16 2010
On August 12th, the Second Circuit Court of Appeals affirmed the conviction and sentence of Sanjay Kumar, the former CEO and Chairman of Computer Associates.

Ninth Circuit rejects private right of action under Section 13(a) of Investment Company Act
Jenner & Block August 13 2010
The Ninth Circuit held yesterday that no private cause of action exists to enforce the provisions of Section 13(a) of the Investment Company Act of 1940, which requires an investment company to obtain shareholder approval before deviating from the investment policies contained in the company's registration statement filed with the SEC.

Dodd-Frank changes the game for hedge funds and PE funds
Reed Smith LLP August 13 2010
In the Private Fund Investment Advisers Registration Act of 2010, Congress adopted changes to the Investment Advisers Act of 1940 that greatly increase the chances that managers of hedge funds or private equity funds will now have to register as investment advisers.

Ninth Circuit holds that scienter may be established through an objective evaluation of a defendant's deliberate recklessness
Sheppard Mullin Richter & Hampton LLP August 13 2010
In Securities & Exchange Commission v Platforms Wireless Int’l Corp, No 07-56542, 2010 US App LEXIS 15328 (9th Cir July 27, 2010), the United States Court of Appeals for the Ninth Circuit held that under Section 10(b) of Securities Exchange Act of 1934 (“1934 Act”), 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5, a showing that a statement is so obviously misleading to a reasonable person that the defendant who made the statement must have known of its misleading nature is sufficient on summary judgment to prove defendant’s scienter.

New whistleblower incentives and protections in the Dodd-Frank Act
Jones Day August 12 2010
On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act").

Generic guidance on 'generic' derivatives disclosure - recent comments from the staff on derivatives disclosure
Reed Smith LLP August 11 2010
had hopes for some progress toward consistent, if not sensible, regulation when the SEC announced that the Division of Investment Management was reevaluating the use of derivatives by investment companies.

SEC adopts rule to curtail 'pay to play' practices involving state and local government entities
Reed Smith LLP August 10 2010
The US Securities and Exchange Commission ("SEC") has adopted Rule 206(4)-5 (the "Pay to Play Rule") under the Investment Advisers Act of 1940 ("Advisers Act") to curtail what the SEC believes represent "pay to play" practices and arrangements involving state and local government entities, including public pension plans.

SEC ban on adviser "pay to play" arrangements
Jorden Burt LLP August 10 2010
The following summary highlights certain aspects of the SEC's new rule banning so-called "pay to play" arrangements, whereby investment advisers ("advisers") seek to influence awards of advisory contracts by public pension plans by making or soliciting political contributions to officials who are in a position to influence the awards.

Dodd-Frank permanently exempts smaller reporting companies from Sarbanes-Oxley auditor attestation requirement
Fox Rothschild LLP August 9 2010
On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank).

Dodd-Frank increases financial threshold for accredited investor status
Fox Rothschild LLP August 9 2010
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) includes a provision increasing the minimum net worth required for natural persons to be an "accredited investor" under Regulation D under the Securities Act of 1933, as amended.

Citigroup settles "subprime securitizer" lawsuit with SEC for $75m
Kahrl Wutscher LLP August 5 2010
The United States Securities and Exchange Commission sued Citigroup Inc. with misleading investors about the company's exposure to subprime mortgage-related assets.

Commercial Property

Going green by building green
Greenbaum, Rowe, Smith & Davis LLP August 27 2010
Green building is a popular topic in the current construction and real estate markets, but what exactly does it mean to build green?

Problem properties: securing vacant buildings
Fredrikson & Byron PA August 24 2010
When an owner of a vacant or unoccupied building is issued an order under Minn. Stat. § 463.251(2) deeming the building hazardous, the owner now has 6 days to request a hearing on the order.

Property owners may receive significant and long-term financial benefits from contesting assessed value of real property
Holland & Knight LLP August 24 2010
Every year California property owners pay property tax based upon the property's assessed value, as determined by the county assessor.

Abandoned property
Fredrikson & Byron PA August 24 2010
The Minnesota legislature has significantly reduced the amount of time a landlord must hold and store personal property abandoned by a tenant.

Eviction of tenants in properties subject to foreclosure
Fredrikson & Byron PA August 24 2010
The Minnesota Legislature has codified the Protecting Tenants at Foreclosure Act of 2009.

Private transfer fees
Fredrikson & Byron PA August 24 2010
The Minnesota Legislature has deemed private transfer fees that run with a property to be against public policy and are invalid and unenforceable.

Home warranties
Fredrikson & Byron PA August 24 2010
Minnesota law requires any vendor selling a completed dwelling, or home improvement contractor, to warrant to the buyer or owner that the dwelling is free from faulty workmanship, defective materials, or major construction defects due to noncompliance with building standards.

Local ordinance restrictions
Fredrikson & Byron PA August 24 2010
Under Minn. Stat. § 326B.121(c), municipalities are prohibited from enacting an ordinance requiring a building code that is in conflict with the State Building Code.

Empty threat of eminent domain proceedings does not support declaratory relief
Kelley Drye & Warren LLP August 24 2010
Rock Energy Cooperative, a Wisconsin-based utility, and the Village of Rockton, Illinois were both interested when Alliant Energy announced its desire to sell certain power transmission assets.

Postponement of foreclosure sales
Fredrikson & Byron PA August 24 2010
The Minnesota law regarding postponement of foreclosure sales has been amended.

Lead paint certification for residential properties
Fredrikson & Byron PA August 24 2010
A new Minnesota law now requires workers renovating a residential structure built prior to 1978 to be certified to perform lead work pursuant to Environmental Protection Agency regulations found in the Code of Federal Regulations Title 40 § 745.

Eviction of tenants for nonpayment of rent
Fredrikson & Byron PA August 24 2010
Under Minnesota law, a landlord may bring an eviction action against a tenant for non-payment of rent.

New rules for land divisions
Reinhart Boerner Van Deuren SC August 24 2010
Once upon a time, in a place far, far away, special people called "developers" used money borrowed from banks to improve raw land and create subdivisions.

Applicant screening fee
Fredrikson & Byron PA August 24 2010
The Minnesota legislature has made numerous changes to ensure that applicant screening fees will be used for their intended purpose.

Conditional use deeds
Fredrikson & Byron PA August 24 2010
The Minnesota Legislature has made significant changes concerning the classification, sale, and conveyance of tax forfeited lands to public entities.

Receipt for rent paid in cash
Fredrikson & Byron PA August 24 2010
A new Minnesota law now requires a landlord to immediately provide a written receipt to a tenant if the landlord receives a cash payment from a tenant in person.

Reasonable accommodations and parking
Fox Rothschild LLP August 23 2010
I get questions concerning handicapped parking spots regularly.

Applicable federal rates and housing tax credit applicable percentages for September 2010
Squire Sanders & Dempsey LLP August 20 2010
The US Treasury (Internal Revenue Service) issues a revenue ruling each month with interest rates.

More on source of income as a protected class
Fox Rothschild LLP August 20 2010
At first glance, the protected classes sound simple enough.

Washington upholds property transfer by canceled LLC
Stoel Rives LLP August 20 2010
What happens to property owned by a canceled LLC?

IRS publishes guidance on real property lien releases by REMICs
Orrick Herrington & Sutcliffe LLP August 20 2010
On August 17th, the IRS published Revenue Procedure 2010-30, which responds to various requests for relief made by CMBS market participants in response to final regulations issued by the IRS on September 16, 2009.

DOJ issues two advance notices of proposed rulemaking under Titles II and III of the ADA
Ballard Spahr LLP August 19 2010
The U.S. Department of Justice is considering regulating various categories of equipment, furniture, and Web sites under the Americans with Disabilities Act.

Department of Justice undertakes update to ADA regulations under Titles II and III governing public accommodations
Ballard Spahr LLP August 19 2010
The U.S. Department of Justice is updating the regulations under Title II (Public Sector) and Title III (Public Accommodations) of the Americans with Disabilities Act by adopting new Final Regulations and a pair of Advance Notices of Proposed Rulemaking (ANPRMs).

Miniature horses welcome: DOJ enacts revised ADA regulations implementing Title II and Title III
Baker Donelson Bearman Caldwell & Berkowitz PC August 19 2010
With the 20th anniversary of the ADA on Friday, July 23, 2010, Attorney General Eric Holder signed final regulations revising DOJ's Title II and Title III regulations, including its ADA Standards for Accessible Design.

The Sustainable Communities Act of 2010
Whiteford Taylor & Preston LLP August 18 2010
On May 20, 2010, Governor O'Malley signed into law the Maryland Sustainable Communities Act of 2010 ("SCA").

Key commercial real estate firms to form green lease action plan
Whiteford Taylor & Preston LLP August 18 2010
The movement toward the greening of commercial leases took a decisive step forward with the recent announcement of the formation of an alliance of major commercial building owners endorsing a "Green Lease Action Plan" in which participant organizations commit to incorporate principles of sustainability across their building portfolios.

Jury finding in plaintiff’s favor, but awarding no damages is inconsistent
Goldberg Segalla LLP August 17 2010
In Hall v. Bergman, 296 Conn. 169 (Conn. 2010) (May 11, 2010), plaintiff brought an action against multiple defendants, including the acting agent for a condominium owner, alleging unjust enrichment, intentional and negligent emotional distress.

Three-year statute of limitations applies to inverse condemnation action
Sheppard Mullin Richter & Hampton LLP August 10 2010
In William Bookout v. State of California ex rel. Department of Transportation, the Second District Court of Appeal provided important guidance on whether an inverse condemnation action is subject to a three-year or five-year statute of limitations, and whether annual flooding constitutes a continuous or permanent nuisance.

Company & Commercial

SEC adopts rules requiring proxy access
Taft Stettinius & Hollister LLP August 27 2010
On August 25, 2010, the SEC adopted, by a partisan 3-2 vote, final rules on proxy access.

Kentucky amends existing debt adjuster law to cover debt settlement providers
Loeb & Loeb LLP August 26 2010
Kentucky’s debt adjusting law (K.R.S. 380.010 et. seq.) has been amended to include additional limitations affecting debt settlement providers that operate within the state.

Delaware Court of Chancery affirms use of stockholder rights plan
Paul Weiss Rifkind Wharton & Garrison LLP August 25 2010
In Yucaipa American Alliance Fund II, LP v Riggio, the Delaware Court of Chancery upheld the implementation of a stockholder rights plan by the board of directors of Barnes & Noble, Inc.

Western District of New York upholds non-compete and grants TRO
Seyfarth Shaw LLP August 24 2010
Plaintiff IDG USA, LLC (“IDG”), a Georgia company with its principal place of business in North Carolina, commenced an action against a former employee, Kevin J. Schupp (“Schupp”), a New York resident, alleging breaches of a Non-Compete Agreement, breach of a Confidentiality Agreement, unfair competition, and theft of trade secrets.

Poison pill withstands judicial scrutiny despite special treatment given to company founder
Holland & Knight LLP August 23 2010
An investor acquired 18% of a company and publicly stated he was considering purchasing more shares.

FACTA's receipt truncation requirement does not apply to e-mail receipts
Kelley Drye & Warren LLP August 23 2010
In June of 2009, Eduard Shlahtichman purchased contact lenses from defendant 1-800 Contacts using the Internet.

Third Circuit case explores nooks and crannies of trade secret misappropriation under Pennsylvania law
EpsteinBeckerGreen August 23 2010
A July 27, 2010 decision by the United States Court of Appeals for the Third Circuit, in Bimbo Bakeries USA, Inc. v. Botticella, No. 10-1510, upheld an injunction preventing a senior executive from commencing employment at Hostess Brands, Inc., a bakery rival to the plaintiff Bimbo.

Class action suit filed against Staples for alleged deceptive "buy one get one free" offer
Winston & Strawn LLP August 20 2010
A complaint was filed on Aug., 12, 2010 in the Superior Court of New Jersey on behalf of a putative class of New Jersey residents alleging that Staples' "buy one get one free" offer violated the New Jersey Consumer Fraud Act and constituted common law fraud.

Expecting the unexpected....the crisis audit
McDermott Will & Emery August 20 2010
We've talked before about crisis prevention in general.

Delaware rules on shareholder access to corporate books and records
Katten Muchin Rosenman LLP August 20 2010
Shareholder Westland Police & Fire Retirement System brought an action under Section 220 of the Delaware General Corporate Law to review the books and records of Axcelis Technologies, Inc.

New Jersey appellate court holds that shareholders may gain access to minutes of the board of directors and executive committees upon proof of a 'proper purpose'
Day Pitney LLP August 20 2010
On August 17, 2010, the New Jersey Appellate Division ruled in a case of first impression that under the New Jersey Business Corporation Act, N.J.S.A. 14A:5-28(4), shareholders are entitled to inspect not only minutes of shareholders meetings but also the minutes of meetings of the board of directors and of executive committees, provided the shareholders present sufficient credible evidence of a "proper purpose" for accessing the records.

Some provisions of federal gift card rule delayed for cards issued prior to April 2010
Loeb & Loeb LLP August 20 2010
As we mentioned in March, the Federal Reserve issued a final rule implementing the Federal CARD Act and regulating gift certificates, store gift cards, and general-use prepaid cards.

Court denies request to amend complaint and assert theory not asserted in trial court
Kelley Drye & Warren LLP August 20 2010
Plaintiffs Hale and others filed a derivative action against China Online, Victor Chu, and others.

New York State adopts amendments to Power of Attorney Law
Katten Muchin Rosenman LLP August 20 2010
In 2009, New York State adopted amendments to the New York Power of Attorney Law imposing more demanding power of attorney disclosure and execution requirements aimed at reducing the risks of abuse and fraud in elderly care and the financial planning process.

General motors files for IPO
Alston & Bird LLP August 19 2010
Yesterday afternoon, General Motors filed a registration statement on Form S-1 with the Securities and Exchange Commission for a proposed initial public offering of GM common stock to be sold by certain GM stockholders, and the issuance by GM of newly issued shares of Series B mandatory convertible junior preferred stock.

Will B Corporations promote the green movement?
Whiteford Taylor & Preston LLP August 18 2010
By now you may have already heard about Maryland's new legislation, signed into law this past April, permitting the creation of Benefit Corporations, commonly referred to as "B Corporations".

"I can't believe it's not implausible" - Iqbal/Twombly doctrine does not result in dismissal of Yumul claims
Stoel Rives LLP August 18 2010
As our own Ken Odza recently blogged, the plausibility pleading standard articulated by the Supreme Court in the Iqbal and Twombly cases resulted recently in the FRCP 12(b)(6) dismissal of misrepresentation claims against Unilever.

New York: foreign money judgment enforceable
Goldberg Segalla LLP August 17 2010
In John Galliano, S. A. v. Stallion, Inc., __ N.Y.3d __, 2010 N.Y. Slip. Op. 4829 (2010) (June 8, 2010), the Court of Appeals addressed the circumstances in which a foreign money judgment is enforceable in New York.

Delaware Supreme Court rejects investor's books and records access appeal – City of Westland Police & Fire Retirement Sys. v. Axcelis Tech., Inc.
Reed Smith LLP August 16 2010
On August 11, 2010, the Delaware Supreme Court, in City of Westland Police & Fire Retirement Sys. v. Axcelis Tech., Inc., Del., No. 594, 2009, affirmed the Delaware Court of Chancery's dismissal of a stockholder's lawsuit brought under 8 Del. C. § 220 to compel Axcelis Technologies, Inc. ("Axcelis") to provide access to its books and records to a plaintiff-stockholder after Axcelis' board rejected a $630 million merger offer from Sumitomo Heavy Industries, Ltd. ("SHI").

Concealment of breach of fiduciary duty tolls the Alabama statute of limitations
Stoel Rives LLP August 12 2010
Here's a case for you.

New Department of Justice guidance seeks to bolster confidence in the use of independent monitors
Reed Smith LLP August 12 2010
It is a foregone conclusion that the resolution of corporate regulatory violations through deferred-prosecution and non-prosecution agreements is here to stay.

Wisconsin adopts law regulating business-to-business automatic renewal clauses
Foley & Lardner LLP August 11 2010
In May 2010, Wisconsin adopted a new statute regulating provisions for the automatic renewal of certain contracts.

Competition

FTC and DOJ publish revised Horizontal Merger Guidelines
Hunton & Williams LLP August 31 2010
On August 19, 2010, the Federal Trade Commission and the U.S. Department of Justice (collectively “the Agencies”) released the final version of the revised Horizontal Merger Guidelines (the “2010 Merger Guidelines”).

US antitrust authorities release new Horizontal Merger Guidelines
Freshfields Bruckhaus Deringer LLP August 27 2010
The United States antitrust agencies recently released the final version of the revised Horizontal Merger Guidelines (2010 Guidelines), issued first in draft form in April for public comment.

Antitrust Division andFederal Trade Commission announce revised horizontal merger guidelines
Proskauer Rose LLP August 27 2010
On August 19, 2010, the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice released revised horizontal merger guidelines outlining how the agencies evaluate the likely competitive impact of mergers.

U.S. antitrust agencies issue revised merger guidelines
Paul Weiss Rifkind Wharton & Garrison LLP August 26 2010
On August 19, 2010, the Federal Trade Commission and United States Department of Justice issued revised Horizontal Merger Guidelines.

New merger guidelines underscore importance of internal planning documents
McDermott Will & Emery August 26 2010
New Horizontal Merger Guidelines recently released by the Federal Trade Commission and U.S. Department of Justice emphasize the competitive effects of potential alignment transactions and place a premium on internal planning materials.

Third Circuit vacates several Sherman Act and RICO claims in insurance brokerage MDL
Jorden Burt LLP August 26 2010
We have reported several times on the ongoing developments in the Insurance Brokerage Antitrust Litigation MDL proceeding.

U.S. antitrust agencies finalize updates to horizontal merger guidelines
Morgan Lewis & Bockius LLP August 26 2010
On August 19, the Antitrust Division of the Department of Justice and the Federal Trade Commission (together, the agencies) issued new Horizontal Merger Guidelines (the Guidelines) to explain and clarify their current enforcement philosophy.

Third Circuit adopts deferential approach to determine whether sports sanctioning bodies' exclusive equipment requirements and contracts violate antitrust laws
Proskauer Rose LLP August 26 2010
On July 23, 2010, the Third Circuit held that a racing circuit's decisions to adopt an exclusive equipment requirement and enter into a corresponding exclusive supply contract with the equipment manufacturer do not violate the antitrust laws.

The FTC has proposed significant amendments to the HSR form
Hogan Lovells August 26 2010
The Federal Trade Commission (FTC) recently published proposed amendments to the Hart-Scott-Rodino (HSR) rules, form, and instructions.

Antitrust agencies revise merger guidelines
Barnes & Thornburg LLP August 25 2010
On Aug. 19, 2010, the Department of Justice (DOJ) and Federal Trade Commission (FTC) released the final version of the 2010 Horizontal Merger Guidelines.

U.S. antitrust agencies issue revised horizontal merger guidelines
Covington & Burling LLP August 24 2010
Last week, the U.S. Justice Department (“DOJ”) and Federal Trade Commission (“FTC”) (together, the “Agencies”) issued revised Horizontal Merger Guidelines (the “Guidelines”) describing how the Agencies seek to determine whether a merger of competing companies will substantially lessen competition.

U.S. antitrust agencies finalize major revision to Horizontal Merger Guidelines
Sidley Austin LLP August 24 2010
On August 19, 2010, the Federal Trade Commission ("FTC") and the Department of Justice ("DOJ") issued in final form a major revision to the two agencies' joint Horizontal Merger Guidelines ("Guidelines").

Mitsubishi wind turbine antitrust claims put on ice
Stoel Rives LLP August 24 2010
A federal judge has stayed Mitsubishi's antitrust monopolization claims against General Electric in an Order issued this week.

US Department of Justice and Federal Trade Commission issue revised Horizontal Merger Guidelines
Gibson Dunn & Crutcher LLP August 24 2010
On August 19, 2010, the US Department of Justice ("DOJ") and Federal Trade Commission ("FTC") issued revised Horizontal Merger Guidelines ("2010 Guidelines").

Federal Trade Commission (FTC) developments
Arent Fox LLP August 23 2010
On August 19, the FTC and US Department of Justice (DOJ) jointly released final versions of the Horizontal Merger Guidelines that outline how the federal antitrust agencies evaluate the likely competitive impact of mergers.

Reduction in burdens or more headaches? FTC to change HSR Act premerger notification form and rules
Morgan Lewis & Bockius LLP August 23 2010
The Federal Trade Commission (FTC) has announced that it is proposing changes to the Hart-Scott-Rodino Act (HSR Act) premerger notification form and rules.

U.S. Department of Justice and the Federal Trade Commission announce new Horizontal Merger Guidelines
McGuireWoods LLP August 20 2010
On August 19, 2010, the U.S. Department of Justice and Federal Trade Commission jointly issued new Horizontal Merger Guidelines, which the agencies claim better reflect their actual practices, provide more clarity and transparency, and will provide businesses with a greater understanding of how the agencies review transactions.

5-Hour Energy v. 8-Hour Energy: monopolization claim flops
Stoel Rives LLP August 19 2010
In an unfair competition suit under 15 U.S.C. § 1125, the king of the two-ounce energy shot, 5-Hour Energy, is suing the makers of 8-Hour Energy in the Eastern District of Michigan, claiming that 8-Hour Energy falsely associates itself with 5-Hour Energy.

FTC proposes HSR changes: would require more documents from all filers, extensive new information from private equity funds, foreign manufacturers, and others
Cleary Gottlieb Steen & Hamilton LLP August 19 2010
On August 16, the FTC published proposed changes to the form for filing a premerger notification under the Hart-Scott-Rodino Act.

U.S. antitrust authorities finalize revisions to merger guidelines
Jones Day August 19 2010
Yesterday, the Federal Trade Commission and Department of Justice issued revised Horizontal Merger Guidelines.

Third Circuit revives limited portions of in re: insurance brokerage antitrust litigation (MDL 1663)
Edwards Angell Palmer & Dodge August 18 2010
Nearly three years after a federal district court dismissed with prejudice a nationwide class action alleging antitrust and RICO claims against insurers and brokers in connection with contingent commission arrangements, the Third Circuit Court of Appeals has revived a limited swath of plaintiffs' claims.

7th Cir upholds denial of class cert in UDAP case, due to individualized causation issues
Kahrl Wutscher LLP August 1 2010
The United States Court of Appeals for the Seventh Circuit recently affirmed a district court’s denial of class certification and grant of summary judgment in favor of an oil company being sued under the Illinois Consumer Fraud and Deceptive Business Practices act (“ICFA”), 815 ILCS 505/2, et seq., and for unjust enrichment.

Construction

Folksamerica given 60 days to perfect service against Constructora del Litoral
Jorden Burt LLP August 24 2010
The US District Court for the Southern District of Florida recently issued an opinion on defendant Constructora del Litoral's Motion to Dismiss for Insufficiency of Service of Process by plaintiff Folksamerica Reinsurance.

CGL defense coverage for construction defect pre-litigation
Farella Braun & Martel LLP August 24 2010
In a recent case out of the Fourth Appellate District of the California Court of Appeal, Clarendon America Ins. Co. v. Starnet Ins. Co., the Court held that an insurer’s duty to defend applies to the mandatory pre-litigation procedures required in California construction defect cases, holding that the term “suit”, as used in a commercial general liability (CGL) insurance policy, includes the duty to defend an insured in proceedings under the Calderon Act, California Civil Code section 1375, et seq.

Corporate Finance/M&A

A really basic checklist for employee benefits in mergers and acquisitions
Fox Rothschild LLP August 26 2010
Lately I have been fielding a lot of questions relating to employee benefits issues in mergers and acquisitions.

Items to consider in determining whether to sell your business in 2010 - part 4 of 4
Haynes and Boone LLP August 26 2010
When a business owner has entered into a confidentiality agreement and a letter of intent ("LOI") and has provided a potential buyer with requested due diligence materials, it is time to document the sale of the business with the transaction documents, including a purchase agreement, a bill of sale, and many other items (often the transaction documents are negotiated on a parallel basis while the due diligence process is underway).

Special distressed debt tax election affects future M&A tax planning
Ballard Spahr LLP August 25 2010
On August 12, 2010, the IRS released temporary regulations dealing with the special election afforded taxpayers in 2009 and 2010 to defer the inclusion of income recognized upon the reacquisition of their own distressed debt instruments.

Anticipated up-tick in merger and acquisition activity; don't forget about the change of control provision, Section 280G
Fox Rothschild LLP August 23 2010
Congress enacted §280G in 1984 over concern that contracts between a corporation and its employees providing golden parachutes directly (or indirectly) attributable to a takeover of a target company would have an adverse effect on takeover activity in general, elevate the concerns of the management of the target company beyond permitted boundaries, including the deflection of shareholder value from the target's shareholders to key management and control shareholders of the target company.

DOJ/FTChorizontal merger guideline revisions finalized
Alston & Bird LLP August 19 2010
The U.S. Department of Justice and the Federal Trade Commission today released the final version of their revised Horizontal Merger Guidelines.

Using contingent consideration to bridge the value gap
Morrison & Foerster LLP August 18 2010
By almost any measure, M&A activity is decidedly up over the abysmal levels of a year ago.

Service recently issues favorable continuity of business interest private letter ruling on R&D activities
Fox Rothschild LLP August 17 2010
One of the various requirements to qualify an acquisitive transaction as a tax-free reorganization is the continuity of business enterprise requirement.

Connecticut: “insured v. insured” exclusion found ambiguous due to corporate merger
Goldberg Segalla LLP August 17 2010
The dispute in Macy v. Carolina Cas. Ins. Co., 2010 U.S. App. LEXIS 13326 (2nd Cir. (Conn.) 2010) (June 20, 2010), hinged on the corporate history of Community Research Associates.

Possible privatization of Utah liquor stores
Stoel Rives LLP August 16 2010
The sixteen-member Utah Privatization Policy Board was created by the legislature to determine what services currently provided by the state can be privatized.

Corporate Immigration

Kentucky Consular Center conducting telephonic confirmation regarding non-immigrant visa petitions
Morgan Lewis & Bockius LLP August 30 2010
The Kentucky Consular Center (KCC) has commenced verification of information contained in nonimmigrant visa petitions received from U.S. Citizenship and Immigration Services.

USCIS introduces new photo matching tool in E-Verify
Fakhoury Law Group PC August 28 2010
This week, USCIS announced that it will expand the photo matching portion of the E-Verify program to include U.S. passports and driver’s license data.

DOL H-1B audit results in settlement of nearly $1 million
Ogletree Deakins August 25 2010
Many employers use H-1B workers to fill critical needs in IT, engineering, teaching and other professional positions.

Are 50% of your workers on H-1B/L-1? Major fee increase implemented
Ogletree Deakins August 25 2010
A bill making emergency supplemental appropriations for border security was signed into law by President Barack Obama on August 13.

Many business visitors and tourists must pay new ESTA fee
Ogletree Deakins August 25 2010
Effective September 8, a $14 fee will be charged for Electronic System for Travel Authorization (ESTA) registration.

H-1B cap update: spike in filing reported
Ogletree Deakins August 25 2010
A sudden increase in demand for H-1B visa petitions was reported last week.

New electronic system for travel authorization fee for Visa Waiver Program travelers takes effect September 8
Fakhoury Law Group PC August 25 2010
The Department of State (DOS) has just posted a cable providing clarification on the Travel Promotion Act of 2009 (TPA), a new rule that would require travelers from Visa Waiver Program countries to pay operational and travel promotion fees when applying for the Electronic System for Travel Authorization (ESTA).

Electronic I-9 regulations finalized
Ogletree Deakins August 25 2010
In June 2006, Immigration and Customs Enforcement (ICE) published an interim final rule authorizing the electronic storage of I-9 Employment Eligibility Verification forms and providing standards for such systems.

USCIS “anti-contractor” H-1B memo upheld – lawsuit dismissed
Ogletree Deakins August 25 2010
In the June 2010 issue of the Immigration eAuthority, we reported on the lawsuit filed by several software/IT companies and national trade association of staffing companies against the U.S. Citizenship and Immigration Services (USCIS) challenging the so-called “Neufeld Memo” which provides field guidance regarding proper employer-employee relationships required to support H-1B petition approvals.

Injunction prevents enforcement of key provisions
Ogletree Deakins August 25 2010
On July 28, one day before Arizona's controversial immigration law (commonly referred to as S.B. 1070) was set to take effect, a federal judge issued an injunction preventing implementation of several of the law's key provisions.

August 13, 2010 H-1B cap count
Williams Mullen August 24 2010
As of August 13, 2010, approximately 29,700 H-1B capsubject petitions were receipted.

President Obama signs fee increases for certain H-1B and L-1 petitions
Williams Mullen August 24 2010
On Aug. 13, 2010, President Obama signed into law Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees.

DOL enforcement of H-1B prevailing wage rules
Williams Mullen August 24 2010
Although the H-1B cap favors employers hiring professionals under the program, employers must be aware of the compliance risks.

Human resources tip of the month:
Williams Mullen August 24 2010
We have noticed a slowdown in the processing of Employment Authorization Documents (EAD) and Advance Parole (AP) for employees who are waiting for approval of their Green Cards.

DHS to institute fee for Electronic System for Travel Authorization (ESTA) for Visa Waiver Program
Morgan Lewis & Bockius LLP August 23 2010
Under the Travel Promotion Act of 2009 (TPA), the U.S. Department of Homeland Security (DHS) will require travelers from Visa Waiver Program (VWP) countries to pay operational and travel promotion fees when applying for ESTA beginning September 8, 2010.

USCIS implements H-1B and L-1fee increase for certain employers
Davis Wright Tremaine LLP August 23 2010
On Aug. 13, 2010, President Obama signed into law Public Law 111-230, which contains provisions to increase filing fees for certain H-1B and L-1 petitions.

Utah legislator introduces restrictive immigration enforcement legislation
Fakhoury Law Group PC August 21 2010
A conservative Utah state legislator has proposed a new restrictive immigration regulation similar to Arizona's controversial immigration enforcement bill.

New legislation hikes H-1B and L-1 filing fees
Fakhoury Law Group PC August 20 2010
On August 13 2010 President Barack Obama signed into law the Emergency Border Security Supplemental Appropriations Act of 2010.

Higher H-1b and L-1 fees will not affect most employers
Thompson Coburn LLP August 20 2010
Last week, Congress passed and President Obama signed new legislation to raise L-1 filing fees by $2,250 and H-1B fees by $2,000.

Patronage capital lawsuits against electric cooperatives on the rise
Sutherland Asbill & Brennan LLP August 19 2010
In 2009-2010, at least six class action lawsuits have been filed against electric cooperatives over patronage capital (or capital credits).

State Department releases September 2010 Visa Bulletin
Littler Mendelson PC August 19 2010
The State Department has released the September 2010 Visa Bulletin, which summarizes visa availability.

Department of Homeland Security (DHS) update
Gardere Wynne Sewell LLP August 16 2010
As of the Aug. 6, 2010 count issued by the U.S. Citizenship and Immigration Services (USCIS), approximately 28,500 petitions for professional workers have been filed towards the 65,000 annual cap, and an additional 11,900 H-1B petitions have been receipted for foreign nationals with advanced degrees from U.S. institutions.

The “not so United States” on immigration laws
Jones Walker August 3 2010
While the federal government continues to debate various immigration bills, individual states have been very busy passing immigration laws on topics such as education, health care, public benefits and, of course, employment.

Corporate Tax

Four common IRS church audit issues
Caplin & Drysdale August 31 2010
Church tax audits can be frightening, more so now than ever, with the prevailing climate of IRS tightening its controls on non-profits.

Medical resident FICA -- action on individual refund claims
Proskauer Rose LLP August 30 2010
We have been closely following the medical resident FICA refund issue.

Congress considers HIRE Act extension
McGuireWoods LLP August 27 2010
Sen. Charles Schumer (D-NY) and Rep. Paul Tonko (D-NY) have introduced legislation into the Senate and House of Representatives intended to extend the HIRE Act, which was signed into law by President Obama on March 18, 2010, by six months.

Service issues Notice 2010-58 in providing guidance under longer net operating loss carryback periods recently granted by Congress
Fox Rothschild LLP August 26 2010
Section 172(a) allows a taxpayer to claim a deduction in an amount equal to the aggregate of the NOL carryovers and carrybacks to the taxable year.

Administration presents transportation proposals
Buchanan Ingersoll & Rooney PC August 26 2010
Earlier this year, the governor issued a proclamation calling a special session of the legislature to address transportation funding.

Marcellus Shale update
Buchanan Ingersoll & Rooney PC August 26 2010
The 2010-2011 budget requires the general assembly to consider a natural gas extraction tax bill by October 1.

Tax amnesties in Florida, Illinois, Kansas, Minnesota, Nevada, New Mexico and D.C.
Duane Morris LLP August 24 2010
The following states have tax amnesties in progress or starting soon.

No talks yet on natural gas tax
Duane Morris LLP August 23 2010
Pennsylvania's lawmakers, the governor's office and the natural gas industry have yet to begin formal negotiations on establishing a natural gas tax, industry officials say.

IRS questionnaire: failure to respond will incur enforcement action
Baker Donelson Bearman Caldwell & Berkowitz PC August 23 2010
In May, the Internal Revenue Service's Employee Plans Compliance Unit (EPCU) began issuing questionnaires to employers that sponsor 401(k) plans as a part of its 401(k) Compliance Check Questionnaire Project.

Don't forget about your cafeteria plans
Fox Rothschild LLP August 19 2010
While the focus on health care reform has been primarily major medical plans, there is no question that the new laws have a considerable impact on cafeteria plans.

North Carolina creates new tax incentive for digital media companies
Reed Smith LLP August 19 2010
On July 22 2010 North Carolina Governor Beverly Purdue signed into law legislation that creates a new and innovative tax credit for companies developing interactive digital media, including video game companies and developers of online virtual worlds and interactive websites that allow consumers to create and manipulate certain digital goods (ie, avatars in role-playing scenarios).

Out of state businesses, new economic nexus tool now available
Davis Wright Tremaine LLP August 19 2010
Today the Washington State Department of Revenue (the "Department") released an "Economic Nexus Worksheet/Calculator."

Illinois tax amnesty signed into law . . . again
Reed Smith LLP August 17 2010
Despite his previously stated misgivings about frequent amnesty programs, Illinois Gov. Patrick Quinn (D) signed Senate Bill (SB) 377, Public Act (P.A.) 96-1435, into law August 16, 2010, and so Illinois will conduct its second general tax amnesty in seven years.

Mirant appeals dismissal of challenge to local carbon tax
Van Ness Feldman August 16 2010
According to a recent filing with the Securities and Exchange Commission, a lawsuit brought by Mirant Corp. to overturn a Montgomery County, MD carbon tax has been dismissed in federal district court.

Service issues temporary regulations under section 108(i), election to defer cancellation of indebtedness income for corporations and partnerships
Fox Rothschild LLP August 16 2010
On August 11, 2010, the Service issued temporary regulations (TD 9498) under §108(i)'s election to defer cancellation of indebtedness income for corporations, partnerships and S corporations.

Tax increases for individuals start January 1, 2011
Hodgson Russ LLP August 13 2010
A hot topic in and outside of Washington D.C. is the upcoming changes to the federal income tax rates for individual taxpayers, scheduled to take effect on January 1, 2011.

A postscript - the latest charitable casualty of Madoff: reviewing the transparency of American Jewish Congress - installment 33
Fox Rothschild LLP August 12 2010
This is the thirty-third in a series of Installments on this blog that discusses issues that arose in the aftermath of the Bernard L. Madoff (“Madoff”) scandal.

More than 100 comments available for review on new tax exemption requirements for nonprofit hospitals
Waller Lansden Dortch & Davis LLP August 11 2010
In June, the Internal Revenue Service (IRS) released a notice soliciting comments from the nonprofit hospital industry on certain issues relating to the new section 501(r) requirements for nonprofit hospitals to maintain their tax-exempt status.

Derivatives

New U.S. registration requirement for foreign boards of trade
Alston & Bird LLP August 30 2010
Congress, in a surprise move, has imposed a registration provision on non-U.S. futures markets (“foreign boards of trade”) with direct market access from the United States.

CFTC seeking public input on rulemaking for Dodd-Frank Wall Street Reform and Consumer Protection Act
Katten Muchin Rosenman LLP August 27 2010
The Commodity Futures Trading Commission has published a Federal Register notice seeking public input on the CFTC's proposed rulemaking areas to implement the Dodd-Frank Wall Street Reform and Consumer Protection Act.

CFTC fines ConAgra $12 million, two commissioners dissent
Bracewell & Giuliani LLP August 25 2010
On August 16, 2010, the Commodity Futures Trading Commission issued an order approving a settlement resolving allegations that ConAgra Trade Group, Inc.caused a non-bona fide price to be reported for the NYMEX spot month crude oil futures contract in violation of the Commodity Exchange Act.

CFTC withdraws position limits proposal
Winston & Strawn LLP August 23 2010
On August 18th, the CFTC withdrew its proposed energy position limits in light of the Dodd-Frank Act's provisions requiring broader limits.

CFTC issues letter to CME regarding ELX EFF rule
Winston & Strawn LLP August 23 2010
On August 13th, the CFTC sent a letter to CME Group, Inc. regarding a Chicago Board of Trade self-certified Market Regulation Advisory Notice issued on October 19, 2009.

CFTC issues letter to CME in support of EFF transactions on ELX
Katten Muchin Rosenman LLP August 20 2010
In connection with the long-running dispute between CME Group, Inc.

SEC/CFTC ANPR: Dodd-Frank Act, Title VII definitions
Orrick Herrington & Sutcliffe LLP August 20 2010
On August 13, the Fed and the CFTC issued an advance notice of proposed rulemaking to solicit comments on how to define key terms in connection with swaps and security-based swaps and as to regulations to be prescribed regarding "mixed swaps", as required under Section VII of the Dodd-Frank Act.

SEC and CFTC seek comment on key definitions in Dodd-Frank Act derivatives regulation scheme
Goodwin Procter LLP August 17 2010
The SEC published a joint advance notice of proposed rulemaking requesting comment from interested parties on rulemaking by the agencies to further define certain key definitions that are part of the comprehensive scheme for regulating swaps and security-based swaps set forth in the Wall Street Transparency and Accountability Act of 2010, Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

Implications of the financial reform legislation for end users of derivatives
Foley & Lardner LLP August 11 2010
We have previously summarized the general implications of The Wall Street Transparency and Accountability Act (TWSTAA) for various participants in the derivatives markets.

E-commerce

There's no 5th Amendment in Second Life
Pillsbury Winthrop Shaw Pittman LLP August 31 2010
In the real world (at least in the US), the 5th Amendment to the Constitution states, "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Online ad network sued over tracking using flash cookies
Hunton & Williams LLP August 27 2010
On August 18, 2010, a complaint was filed in the U.S. District Court for the Central District of California, alleging that Specific Media, Inc. violated the Computer Fraud and Abuse Act, as well as state privacy and computer security laws, by failing to provide adequate notice regarding its online tracking practices.

The wire (fraud)
Day Pitney LLP August 25 2010
The wire-fraud statute requires the government to prove only that the use of the wires was "reasonably foreseeable," according to the Tenth Circuit.

Facebook Places: where you want to be?
Duane Morris LLP August 24 2010
Facebook has just brought to the fore its new service called Facebook Places that allows users to alert others to their physical location and that ultimately seeks to enable Facebook to draw upon local business advertisers.

Overlooked elements of the Verizon-Google net neutrality proposal
Kelley Drye & Warren LLP August 24 2010
Earlier this month, Verizon and Google announced an agreement on the vexing issue of net neutrality.

Telecom privacy news
Arent Fox LLP August 23 2010
A South Carolina court of appeals has held that a defendant's unauthorized access of e-mails on a Yahoo! account server violated the Stored Communications Act (SCA).

DMCA saves Google again—im“Perfect” notices not adequate notice of infringement
Pillsbury Winthrop Shaw Pittman LLP August 23 2010
In Perfect 10, Inc. v. Google, Inc., Case No. CV 04-9484 (C.D. Cal. July 26, 2010), the court issued a decision consistent with a recent line of cases that generally favors online service providers that establish and implement effective policies under the Digital Millennium Copyright Act (“DMCA”), keeps the burden to police infringement on content owners, and strictly construes the DMCA in determining whether content owners meet the DMCA notice requirements.

FTC closes data security investigation of P2P software provider
Kelley Drye & Warren LLP August 20 2010
On August 19, 2010, FTC staff closed an investigation into Limewire, LLC.

North Carolina Superior Court holds state shield law protects identities of newspaper website commenters
Brooks Pierce McLendon Humphrey & Leonard LLP August 19 2010
On July 27, 2010, NC Superior Court Judge Calvin E Murphy ruled from the bench that North Carolina’s shield law, N.C. Gen. Stat. § 8-53.11, protects a newspaper from the compelled disclosure during judicial proceedings of the identities of anonymous commenters to the newspaper’s website.

GAO: cybersecurity expectations not being met
Sonnenschein Nath & Rosenthal LLP August 18 2010
On August 16, a Government Accountability Office (GAO) report entitled "Key Private and Public Cyber Expectations Need to Be Consistently Addressed" was released.

CARU public service announcement asks parents: "do you know where your children are on the internet?"
Reed Smith LLP August 17 2010
The Children's Advertising Review Unit (CARU) of the Council of Better Business Bureaus, Inc., recently launched its first public service announcements, cautioning parents to be alert to their children's activities on the Internet.

Broadband update: Google -Verizon internet regulation proposal
Dow Lohnes PLLC August 17 2010
On August 9, Google and Verizon released a proposal for legislation on Internet regulation.

Google wins major victory on sale of trademarks as keywords
Foley & Lardner LLP August 13 2010
A federal court recently held that Google's auctioning of Rosetta Stone's trademarks as triggers for paid advertisements — and the use of those trademarks within the advertisements — creates no likelihood of confusion and therefore does not infringe.

Employee Benefits & Pensions

EBSA proposes rule amending prohibited transaction exemption filing and processing procedures
Littler Mendelson PC August 30 2010
The Department of Labor's Employee Benefits Security Administration (EBSA) has published a proposed rule that would update the filing and processing procedures related to the prohibited transaction exemption under the Employee Retirement Income Security Act (ERISA).

Health reform Q&A for employers - update
Baker & Daniels LLP August 27 2010
In the last two months, the Department of Labor, the Internal Revenue Service and the Department of Health and Human Services published three additional sets of interim final regulations to address compliance requirements in the first significant round of changes to impact group health plans under the Patient Protection and Affordable Care Act (PPACA).

Guidance issued regarding internal claims, appeals, and external review processes
McKenna Long & Aldridge August 26 2010
This is the sixth in a series of alerts intended to help guide employers and plan sponsors through their new obligations under the recently-enacted health care reform laws and related guidance.

Mandatory IRAs proposed
Baker Donelson Bearman Caldwell & Berkowitz PC August 26 2010
Employers under the Patient Protection and Affordable Care Act are not required to provide health care coverage, but a failure to do so may result in monetary penalties.

Federal external review procedure for group health plans
Covington & Burling LLP August 26 2010
The health reform law requires non-grandfathered group health plans to meet new standards for processing internal claims and appeals, and also requires these plans to implement a new external review procedure.

Things to consider about your plans: some best practices
Fox Rothschild LLP August 25 2010
Benefit plan design, administration and documentation is not thrilling stuff.

Required cafeteria plan amendments
Fisher & Phillips LLP August 25 2010
The changes in the law made as part of healthcare reform require most cafeteria plans to be amended by December 31, 2010.

Health care reform — regulations issued on expanded internal/external claims review process for nongrandfathered group health plans
Hunton & Williams LLP August 24 2010
On July 19, 2010, the United States Departments of Health and Human Services, Labor and Treasury issued interim final regulations covering the mandates under the Patient Protection and Affordable Care Act, as amended (the "Health Care Reform Act"), relating to the internal and external claims review process.

Equitable reformation is an available remedy under ERISA § 502(a)(3)
Kelley Drye & Warren LLP August 23 2010
In 1996, Bell Atlantic replaced its Bell Atlantic Management Pension Plan, a defined annuity pension plan, with the Bell Atlantic Cash Balance Plan.

Federal Register announcement
Bricker & Eckler LLP August 23 2010
On August 26, 2010, the Departments of Treasury, Labor, and Health and Human Services published in the Federal Register an announcement of the availability of EBSA Technical Release No. 2010-01 providing an interim enforcement safe harbor for non-grandfathered self-insured group health plans not subject to a state external review process and, therefore, subject to the federal external review process.

New regulations on service provider fee disclosure obligations
McDermott Will & Emery August 23 2010
Plan fiduciaries should prepare for compliance with new regulations that will require service providers to pension, 401(k) and other retirement plans to disclose information to assist plan fiduciaries in assessing the reasonableness of the service providers' compensation and potential conflicts of interest.

Health care reform: new guidance on claims and appeals procedures for group health plans
Davis Wright Tremaine LLP August 23 2010
On July 22, 2010, the Departments of Treasury, Labor, and Health and Human Services jointly released interim final regulations regarding new requirements for the internal claims and appeals procedures for group health plans, and a new requirement for an external appeals process.

Claims and appeals procedures: new internal and external review requirements
Jones Day August 23 2010
The Patient Protection and Affordable Care Act, as amended ("PPACA"), requires group health plans and health insurance issuers to provide both an internal claims and appeals process and an external review process.

PBGC proposes new security requirements for cessation of operations
Steptoe & Johnson LLP August 23 2010
For over 20 years after ERISA's enactment, the government did not make use of §4062(e), which requires an employer to provide security to the Pension Benefit Guaranty Corporation (PBGC) if the cessation of operations at a facility results in the separation of more than 20 percent of the participants in a defined benefit plan.

Health care reform: preventive care regulations summary
Reinhart Boerner Van Deuren SC August 19 2010
In March, President Obama signed the Patient Protection and Affordable Health Care Act (PPACA) and the Health Care and Education Reconciliation Act of 2010 (HCERA), together referred to as the Act.

Summary annual report deadline for calendar year defined contribution plans
Reinhart Boerner Van Deuren SC August 17 2010
Plan administrators of defined contribution plans have nine months after the end of a plan year to provide participants and beneficiaries with a summary annual report (the SAR).

DOL issues new rules on fee disclosure
Reinhart Boerner Van Deuren SC August 17 2010
The Department of Labor's (DOL) Employee Benefits Security Administration (EBSA) released interim final regulations under ERISA section 408(b)(2).

Medicare Part D deadlines
Reinhart Boerner Van Deuren SC August 17 2010
All group health plans that offer prescription drug coverage to Medicare eligible employees (under either an active plan or retiree plan) must provide the annual creditable coverage disclosure notice to Medicare-eligible participants and dependents no later than November 15, 2010.

Court did not use deferential review because plan document was silent
Reinhart Boerner Van Deuren SC August 17 2010
The Eighth Circuit Court of Appeals held that a grant of discretionary authority in a SPD did not warrant a deferential judicial review for abuse of discretion when the plan document was silent.

Court rejects the "prudent investor rate" in favor of the PBGC discount rate
Reinhart Boerner Van Deuren SC August 17 2010
A district court rejected the prudent investor rate theory and applied the Pension Benefit Guaranty Corporation (PBGC) discount rate to determine the amount of a PBGC termination liability claim.

Trust Agreements for SAG - Producers P&H plans
Reed Smith LLP August 17 2010
The following documents constitute the Trust Agreements for the Screen Actors Guild.

DOL issues model notices on dependent coverage, lifetime limits and patient protections
Reinhart Boerner Van Deuren SC August 17 2010
The DOL issued model notices for three PPACA requirements that take effect for plan years beginning on or after September 23, 2010 (January 1, 2011 for calendar year plans).

Summary plan information deadline for calendar year multiemployer defined benefit plans
Reinhart Boerner Van Deuren SC August 17 2010
Multiemployer defined benefit plans are required to provide a summary report to each union and employer contributing to the plan within 30 days of the due date of Form 5500, including extensions.

Department of Labor issues final regulations on fee disclosures for pension plans
Pillsbury Winthrop Shaw Pittman LLP August 17 2010
On July 16, 2010, the Department of Labor ("DOL") published interim final regulations under section 408(b)(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") requiring certain retirement plan service providers to disclose fee-related information to plan fiduciaries.

Payment error rate measurement for Medicaid and CHIP
Reed Smith LLP August 13 2010
On August 10, 2010, CMS published a final rule designed to reduce the rate of errors in Medicaid and the Children's Health Insurance Program (CHIP).

Employee benefits in a multi-generational workplace
EpsteinBeckerGreen August 12 2010
In recent years, there have been many research studies concerning the inherent challenges of managing a multi-generational workplace.

Health care reform – guidance issued on internal claims and appeals, and external review processes
Reed Smith LLP August 9 2010
On July 23, 2010, the Department of Treasury, in conjunction with the Department of Labor and the Department of Health & Human Services ("HHS"), issued interim final rules for non-grandfathered plans implementing the internal claims and appeals and external review processes for group health plans and health insurance issuers under the Patient Protection and Affordable Care Act of 2010 and the Health Care and Education Reconciliation Act of 2010 (collectively, the "Health Care Reform Act").

Employment & Labor

Liability for breach of industrial safety requirements is intensified
Littler Mendelson PC August 30 2010
Effective January 1, 2011, the administrative liability for organizations having dangerous production facilities, and officers of these organizations for breach of industrial safety requirements, will be intensified.

Massachusetts personnel records statute amended to require employers to notify employees when negative information is placed in personnel records
Goodwin Procter LLP August 30 2010
Massachusetts recently enacted an economic development statute which contains an important amendment to the Massachusetts Personnel Records Statute, G.L. c. 149, § 52C.

Amendments to Virginia wage payment act provide employers with greater flexibility in paying wages
Williams Mullen August 27 2010
Changes to the Virginia Payment of Wage Law, Va. Code Ann. § 40.1-29, now provide additional flexibility for employers who wish to streamline their payroll process.

New legislation changes basic employment practices in Massachusetts
Proskauer Rose LLP August 26 2010
Two pieces of legislation signed by Massachusetts Governor Deval Patrick in early August - one intended to stimulate job growth and coordinate state-funded economic development, and the other reforming the Commonwealth's Criminal Offender Record Information ("CORI") system - contain provisions that will require employers in the Commonwealth to take affirmative steps to change their current employment practices.

Decisionmaker is not "cat's paw" when she did not rely exclusively on allegedly biased supervisor
Kelley Drye & Warren LLP August 26 2010
Katie Lindsey had worked as a Walgreens pharmacist for only a few years when district supervisor Connie Jenkins promoted her to manager.

Illinois employers face new restrictions on use of credit history
Quarles & Brady August 26 2010
On August 10, 2010, Illinois enacted the Employee Credit Privacy Act (the "Act").

Eleventh Circuit finds 43-city non-compete enforceable under Georgia law
Seyfarth Shaw LLP August 26 2010
On August 19, 2010, the Eleventh Circuit Court of Appeals reversed a district court's denial of a motion for injunctive relief regarding enforcement of an employer's non-compete and non-solicitation provisions.

Medical certifications - why, when and how?
Franczek Radelet PC August 26 2010
The medical certification is perhaps the employer's most important tool for managing FMLA leave.

NY DOL issues revised WARN regulations
Bond Schoeneck & King August 25 2010
Earlier this year, we posted on the New York State Department of Labor's new regulations governing New York's WARN Act, the state statute that requires certain employers to provide 90 days notice to employees, their employees' unions, if any, and to government agencies, before engaging in certain actions which result in losses of employment.

Potential overtime pay substantial for pharmaceutical sales representatives
Strasburger & Price LLP August 24 2010
Historically, under the Fair Labor Standards Act, an outside salesperson's primary duty must be to (i) makes sales or (ii) obtain orders or contracts for services or for the use of services in exchange for money from a customer or client.

Recent terminations highlight need for health care employers to focus on employee education regarding social media
Porter Wright Morris & Arthur LLP August 24 2010
We are starting to see an increase in the number of news articles reporting on health care facilities terminating employees for violating patient privacy on their facebook pages or other social media.

Retail detail - staying ahead of OSHA
Seyfarth Shaw LLP August 24 2010
The Occupational Safety and Health Administration (OSHA) has been busy this year implementing new policies and aggressively stepping up enforcement against employers.

Shutting down corporate pick-pockets
Gardere Wynne Sewell LLP August 24 2010
A 10-year employee accounting manager systematically transfers amounts via ACH to her personal checking account.

What to expect when the DOL comes knocking
Franczek Radelet PC August 24 2010
I have reason to believe that a former employee is going to file a complaint with the Department of Labor.

Amendment to Massachusetts personnel records statute imposes affirmative obligation for employer to discuss "negative" information with employees
Edwards Angell Palmer & Dodge August 24 2010
Buried within the text of the recently-signed “Act Relative to Economic Development Reorganization” is a significant amendment to the Massachusetts Personnel Records Statute, G.L. c. 149, § 52C.

Supreme Court validates public employer’s search of an employee’s text messages
Bricker & Eckler LLP August 24 2010
One of the last cases decided by the United States Supreme Court before its summer recess was an important one for employers in today's digital and social media-driven world.

Proposed legislation seeks to expand FLSA coverage to in-home workers
Fox Rothschild LLP August 24 2010
Under the proposed Workforce Empowerment Act (S 3696), introduced in the Senate on August 3, 2010, in-home direct care workers who work more than twenty hours per week will be covered by the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA).

Top ten things to do when an employee resigns to join a competitor
Fisher & Phillips LLP August 23 2010
When an employee resigns to join a competitor, it is important to respond promptly.

Michigan’s workplace smoking ban: are you compliant?
Foley & Lardner LLP August 23 2010
As a reminder to employers with operations in Michigan, amendments to the Michigan Clean Indoor Air Act took effect on May 1, 2010.

Seventh Circuit allows employer to correct major plan drafting error
Steptoe & Johnson LLP August 23 2010
In Young v. Verizon’s Bell Atlantic Cash Balance Plan, 2010 U.S. App. LEXIS 16483 (7th Cir., 8/10/10), the plaintiff claimed the benefit of a hugely expensive “scrivener’s error.”

California Proposition 8 barring same-sex marriage ruled unconstitutional – what the ruling means for employers
Littler Mendelson PC August 23 2010
On August 4, 2010, Chief Judge Vaughn Walker of the United States District Court for the Northern District of California issued an order permanently enjoining enforcement of Proposition 8, a voter initiative that amended the California Constitution that stated, "Only marriage between a man and a woman is valid or recognized in California."

Florida's July unemployment rate rises to 11.5 percent
Foley & Lardner LLP August 23 2010
Florida's seasonally adjusted unemployment rate for July 2010 was 11.5 percent, according to information released by the Agency for Workforce Innovation on August 20, 2010.

Employer wins “cat's paw” case
Foley & Lardner LLP August 23 2010
On August 11, 2010, a federal court rejected a terminated employee's "cat's paw" argument.

D.C. Circuit decision ratchets up the risk for employers who use location tracking
Littler Mendelson PC August 23 2010
Employers are increasingly tracking their employees' whereabouts as smartphones, laptops, and vehicles equipped with location-tracing technology become ever more prevalent.

Department of Labor clarifies FMLA leave for child care
Seyfarth Shaw LLP August 23 2010
On June 22, 2010, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued an interpretation of the Family and Medical Leave Act which broadens the right of an employee to take FMLA leave for a child for whom the employee is acting in loco parentis (in the place of the parent).

Newly signed bill significantly changes personnel records law
Ogletree Deakins August 23 2010
Massachusetts Governor Deval Patrick recently signed an economic development bill that contains a significant amendment to the Massachusetts personnel records law.

Union approval at all time lows
Vorys Sater Seymour and Pease LLP August 22 2010
A recently released Gallup survey shows that only 52% of Americans approve of unions.

California Supreme Court rejects employees right to sue for misappropriated tips but an unfair competition law cause of action remains
Littler Mendelson PC August 20 2010
On August 8, 2010, the California Supreme Court, in Lu v. Hawaiian Gardens Casino, No. S171442, decided that employees do not have a private right of action under Labor Code section 351 to pursue remedies for misappropriated tips.

Survey shows a decline in workplace fatalities
Littler Mendelson PC August 20 2010
A preliminary report released August 19 by the Bureau of Labor Statistics' (BLS) National Census of Fatal Occupational Injuries(CGOI) indicates that the number of workplace fatalities declined in 2009 from the prior year.

Court grants summary judgment to hospital in automatic meal-deduction class action
Littler Mendelson PC August 20 2010
In the maelstrom of class actions against hospitals for work allegedly performed during meal periods automatically deducted from pay, a ray of sunshine recently emerged as a federal district court granted summary judgment to a hospital.

Labor Law §§ 200, 240(1) & 241(6) - update
Goldberg Segalla LLP August 20 2010
During this reporting period, it is obvious that the Court of Appeals decision in Runner v. New York Stock Exchange, Inc., 12 N.Y. 599 (2009) has had a significant impact on how various courts are addressing the traditional “falling worker” and “falling object” cases.

Chicago jury awards $30.4 million to diacetyl-exposed factory worker
Shook Hardy & Bacon LLP August 20 2010
According to a news source, a man who worked in a Chicago-area plant for eight years and was diagnosed with bronchiolitis obliterans has been awarded $30.

Election data survey shows unions gaining traction in hospitals
Littler Mendelson PC August 19 2010
Littler recently reviewed union election results at hospitals over the last five years.

Proposed legislation would impose leave and flex time requirements
Prince Lobel Glovsky & Tye LLP August 19 2010
Over the past year, several bills have been filed at the federal level that that could affect paid leave and other employment benefits.

Illinois enacts new law governing employer's use of credit history
Kelley Drye & Warren LLP August 19 2010
On August 10, 2010, Illinois enacted H.B. 4658, the Employee Credit Privacy Act, which governs the use of credit information for employment purposes.

Illinois continues state law trend towards restrictions on the use of credit history in employment decisions
Littler Mendelson PC August 19 2010
An article that I recently published in BNA's Privacy & Security Law Report examined the incipient trend towards state law restrictions on the use of credit history in employment decisions.

New Illinois law restricts employer use of credit history
Hunton & Williams LLP August 19 2010
On August 10, 2010, Illinois Governor Pat Quinn signed the Employee Credit Privacy Act, which prohibits most Illinois employers from inquiring about an applicant's or employee's credit history or using an individual's credit history as a basis for an employment decision.

No private right of action for violation of California law prohibiting employers from taking tips left for employees
Ford & Harrison LLP August 19 2010
California's Labor Code section 351 prohibits employers from taking any gratuity left by patrons for its employees, and states that such gratuity belongs solely to the employee for whom it was left.

Recent decision limits Massachusetts maternity leave act to eight weeks
Prince Lobel Glovsky & Tye LLP August 19 2010
On August 9, 2010, in Global NAPS, Inc. v. Awiszus, Inc., the Supreme Judicial Court of Massachusetts clarified the reach of the Massachusetts Maternity Leave Act (MMLA).

New fact sheet on lactation accommodation available
Prince Lobel Glovsky & Tye LLP August 19 2010
Employers must now provide nursing mothers with a "lactation accommodation."

Union representation activities: are they "working time" under the FLSA?
Fox Rothschild LLP August 18 2010
In a rather new twist on the working time class action trend, Southwestern Bell Telephone Co. is being sued in a Fair Labor Standards Act (“FLSA”) collective action, where the underlying theory is that the company has denied union representatives compensation for their time performing union-related duties.

Clean energy jobs focus of new manufacturing solicitation issued by the DOE
Stoel Rives LLP August 18 2010
On August 12, 2010, Energy Secretary Steven Chu announced a new loan guarantee solicitation for renewable energy manufacturing projects.

Accident “arises out of” named insured’s work for injury to employee, even if additional insured’s negligence caused accident
Goldberg Segalla LLP August 17 2010
In Regal Construction Corp. v. National Union Fire Ins. Co., 2010 N.Y. Slip Op. 4661 (N.Y. June 3, 2010), a construction manager retained a prime contractor and required that contractor name the manager as an additional insured.

Department of Labor attempts to extend the "Christian Doctrine" to subcontracts
Sheppard Mullin Richter & Hampton LLP August 17 2010
It has long been questioned whether the "Christian Doctrine," pursuant to which mandatory contract clauses reflecting core procurement policy are incorporated into government prime contracts by operation of law, can be used to incorporate such clauses into subcontracts.

California Supreme Court expands liability for “stray remarks”
Foley & Lardner LLP August 16 2010
The California Supreme Court issued an opinion last week in which it refused to disregard stray comments about an ex-employee's age as evidence of discrimination.

PHMSA incorporates new and updated consensus standards into pipeline safety regulations and clarifies certain safety regulations
Van Ness Feldman August 16 2010
On August 11, 2010, the Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a final rule incorporating by reference into the federal pipeline safety regulations new and updated voluntary consensus technical standards and making certain regulatory clarifications.

The involuntary transfer of a pregnant employee could support bias claims
Foley & Lardner LLP August 16 2010
An involuntary transfer of a pregnant employee to a less demanding job, without a reduction in pay or benefits, may raise claims of pregnancy and disability discrimination, according to Heather Spees v. James Marine, Inc.

Protections for employees
Bricker & Eckler LLP August 16 2010
The statute probibits employers from discharging or in any manner discriminating against an employee in terms of compensation, terms, conditions, or other privileges of employment.

New Illinois law bans employee credit checks
Thompson Coburn LLP August 12 2010
On August 10, 2010, Illinois Governor Pat Quinn signed into a law a bill that prohibits Illinois employers from running credit checks on prospective or current employees.

Court limits proposed class in automatic meal-break deduction case against hospital
Littler Mendelson PC August 10 2010
By narrowing the scope of the proposed class, in Moss v. Putnam County Hospital (pdf), a federal district court in Indiana appears to have eliminated broad-based collective action claims regarding work allegedly performed by hospital employees during meal periods automatically deducted from their pay.

California court addresses "stray remarks doctrine" in employment discrimination cases
Sheppard Mullin Richter & Hampton LLP August 9 2010
Last week, the California Supreme Court decided Reid v Google, Inc.

Illinois cracks down on employers who fail to pay wages or vacation pay
Reed Smith LLP August 9 2010
A new law will make it much more costly for Illinois employers that fail to pay employees their earned wages, including final compensation such as accrued but unused vacation pay.

Energy & Natural Resources

CPUC proposes to end moratorium on TREC transactions; increase cap to 40%
Stoel Rives LLP August 27 2010
On August 25, the California Public Utilities Commission ("CPUC") issued a proposed decision ("PD") that would end the CPUC's moratorium on approval of tradable renewable energy credit ("TREC") transactions and increase the cap on such transactions for large investor-owned utilities to 40%.

Waste: EPA announces public hearings on proposed coal ash regulations
Shook Hardy & Bacon LLP August 27 2010
EPA has announced that it will convene seven public hearings on the agency's proposal to regulate the disposal and management of coal ash from coal-fired power plants.

DOE gives a good news cycle for natural gas
Foley Hoag LLP August 27 2010
The US Department of Energy (DOE) announced two items in the last week that, while not related, could both spell large changes in the US energy future and create huge boon to the natural gas industry, if they pan out.

Demand response providers may be subject to new regulations in Maryland
Ballard Spahr LLP August 26 2010
The Maryland Public Service Commission (PSC) has initiated a proceeding that could impose new regulatory requirements on certain demand response providers—entities that help consumers earn payments for reducing electricity consumption, particularly during shortages.

TCEQ proposes new air emission regulations for oil & gas facilities
Jackson Walker LLP August 26 2010
The Texas Commission on Environmental Quality (TCEQ) proposed rules that fundamentally change its approach to regulating air emissions from oil and gas exploration and production (E&P) activities.

Public Utilities Commission of Ohio approves FirstEnergy ESP with minor modifications
Bricker & Eckler LLP August 26 2010
On August 25, 2010, the Public Utilities Commission of Ohio (PUCO) approved a stipulated three-year electric security plan (ESP) for FirstEnergy's electric distribution utilities in Ohio in Case No. 10-388-EL-SSO.

Minnesota PUC settles longstanding dispute over REC ownership
Stoel Rives LLP August 26 2010
Last week, the Minnesota Public Utilities Commission resolved a longstanding dispute over who owns Renewable Energy Credits (RECs) when the Power Purchase Agreement (PPA) is silent.

State Senator wants to amend Power Siting Board filing requirements
Bricker & Eckler LLP August 25 2010
State Senator Bill Seitz (R-Cincinnati) introduced a bill to amend the filing requirements for applicants seeking certification from the Ohio Power Siting Board (OPSB).

US Department of Energy issues solicitation for renewable energy manufacturing projects under DOE federal loan guarantee program
Squire Sanders & Dempsey LLP August 25 2010
The US Department of Energy (DOE) recently announced the fourth solicitation to be issued under Section 1705 of the DOE's federal loan guarantee program.

Offshore wind economic development act signed by N.J. governor
Bricker & Eckler LLP August 25 2010
North American Windpower reports that New Jersey Gov. Chris Christie has signed the Offshore Wind Economic Development Act, a bipartisan measure designed to boost economic growth in the state through the development of renewable energy sources and the creation of green jobs.

Deepwater drilling moratorium could be lifted before November
Sutherland Asbill & Brennan LLP August 24 2010
In response to an inquiry by the National Commission on the BP Oil Spill and Offshore Drilling, Michael Bromwich, head of the new Bureau of Ocean Energy Management, Regulation and Enforcement, explained that there is a possibility that the moratorium on deepwater drilling could be lifted before November 30, 2010, for "certain categories of rigs.

N.J. governor signs legislation encouraging offshore wind development
Sutherland Asbill & Brennan LLP August 24 2010
Last week New Jersey Gov. Chris Christie (R) signed the Offshore Wind Economic Development Act in a bid to spur development of wind energy projects offshore New Jersey.

State approves development of two wind farms
Bricker & Eckler LLP August 24 2010
The Ohio Power Siting Board on Monday approved agreements authorizing the development of two wind farms in Northwest Ohio.

DOE:$15 million for innovative geothermal recovery methods
Stoel Rives LLP August 23 2010
On Friday, the US Department of Energy ("DOE") announced a $15 million funding opportunity for geothermal energy research and development projects.

Gathering line company applies for public utility status
Duane Morris LLP August 23 2010
A gathering line company's application with the Pennsylvania Public Utility Commission (PUC) to become a public utility has stirred debate on both the regulation of gathering lines in Pennsylvania and the power of eminent domain.

Pa. DEP letter reminds industry of well construction techniques, emergency notification
Duane Morris LLP August 23 2010
The Pennsylvania Department of Environment Protection (DEP) has written each company drilling into the Marcellus Shale to remind them of proper well construction and emergency notification procedures.

Ninth Circuit rules that NPDES permits are required for logging road ditches and culverts
Dinsmore & Shohl LLP August 23 2010
In a decision that may eventually have significance far beyond the nine states encompassed by the Ninth Circuit Court of Appeals, that court ruled on August 17, 2010 that timber companies are required to obtain National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from logging roads that collect such runoff in ditches, culverts and other channels prior to discharge to streams and rivers.

DOE proposes public disclosure of fuel cycle energy and GHG benefits of appliance standards.
Van Ness Feldman August 23 2010
Acting on recommendations issued in May 2009 by the National Academy of Sciences, the Department of Energy (DOE) proposed using a "full fuel cycle" (FFC) approach to calculating the energy consumption and GHG emission benefits of appliance efficiency standards in future rulemakings.

DC Circuit affirms FERC on maintaining price caps on gas pipeline capacity sales
Bracewell & Giuliani LLP August 23 2010
The U.S. Court of Appeals for the D.C. Circuit has upheld FERC’s decision to remove price ceilings on short term (one year or less) capacity releases by shippers on natural gas pipelines, while maintaining price ceilings on capacity sales by the pipelines themselves.

Sen. Kerry's energy tax bill would help energy storage technologies
Stoel Rives LLP August 23 2010
On August 5, 2010, Sen. John Kerry (D-Mass.) introduced S.3738—the Clean Energy Technology Leadership Act of 2010—which would have some impact on the growth of energy storage technologies in the United States.

Industry begins disclosing chemicals used in fracking
Duane Morris LLP August 23 2010
Range Resources Corporation recently announced it will disclose the chemicals used in its natural-gas fracking process, which hydraulically fractures rocks to free natural gas for pumping.

New Jersey's Offshore Wind Economic Development Act
Reed Smith LLP August 20 2010
On August 19, 2010, New Jersey Gov Chris Christie signed the "Offshore Wind Economic Development Act" (the "Act") into law.

BP transfers claims process to Feinberg
Waller Lansden Dortch & Davis LLP August 19 2010
Yesterday was the last day that BP accepted claims from individuals and businesses claiming damages from the Gulf Oil Spill.

New Jersey enacts the Offshore Wind Economic Development Bill
Lowenstein Sandler PC August 19 2010
August 19, 2010 - Today, Governor Christie signed into law the "Offshore Wind Economic Development Act" (the "Offshore Wind Act").

Rate base, but no tracker, for Maryland smart grid program costs
Bracewell & Giuliani LLP August 17 2010
Baltimore Gas & Electric (BG&E) won Maryland PSC approval late Friday for an $833 million smart grid plan pursuant to which it will install 3,000 smart meter devices per day through 2014.

Caribbean Petroleum files for bankruptcy following explosion at petroleum tank farm
Fox Rothschild LLP August 16 2010
On August 12, 2010, Caribbean Petroleum Corporation filed petitions for bankruptcy in the United States Bankruptcy Court for the District of Delaware.

County pulls out of FutureGen 2.0 project.
Van Ness Feldman August 16 2010
The president of the Coles County economic development organization "Coles Together" wrote to Senator Dick Durbin (D-IL) to inform him that the county's leaders and citizens were "nearly unanimous" in finding that involvement in the revised FutureGen project was not in the county's best interest.

New Illinois law to expedite certain high-voltage transmission projects and exempt others from certification requirements
Mayer Brown LLP August 16 2010
On July 28, 2010, Illinois Governor Pat Quinn signed Public Act 96-1348 (the Act).

Puget wind integration charge rejected.
Stoel Rives LLP August 13 2010
With a swift 13-page order today, FERC rejected Puget Sound Energy's proposed wind integration rate, stating that the rate was not shown to be "just and reasonable" under section 205 of the Federal Power Act.

NERC issues mandatory data request to all NERC registered entities
Van Ness Feldman August 12 2010
On August 6, 2010, the North American Reliability Corporation (NERC) issued for the first time a mandatory data request directed to all NERC registered entities in the United States and Canada.

New Marcellus Shale laws in Pennsylvania would impact subsurface property rights and pooling
Reed Smith LLP August 9 2010
Two new Marcellus Shale laws are currently in the works in Pennsylvania.

Environment

Nanotechnology: EPA seeks comments on nanoscale silver case study
Shook Hardy & Bacon LLP August 27 2010
EPA has announced that it seeks public comments on a nanoscale silver case study and an approach to analyzing its risks.

Water: New York law bans phosphorous in detergent and fertilizer
Shook Hardy & Bacon LLP August 27 2010
New York Governor David Paterson (D) has signed a bill (A08914B) that makes it illegal for stores operating in the state to stock fresh supplies of household dishwasher detergents that contain phosphorous.

Air: EPA proposes revisions to transportation conformity rules
Shook Hardy & Bacon LLP August 27 2010
EPA has published a proposed rule that would establish procedures so the agency will not be required to change transportation conformity rules every time national ambient air quality standards (NAAQS) are revised.

USEPA postpones public hearing on proposal to take over certain states GHG air permitting programs
Reed Smith LLP August 24 2010
On August 23, 2010, the US Environmental Protection Agency (USEPA) postponed the public hearing on its plan to take over greenhouse gas (GHG) permitting programs related to construction or modification projects.

DOE partnership completes demonstration of terrestrial sequestration.
Van Ness Feldman August 23 2010
DOE announced that one of its seven Regional Carbon Sequestration Partnerships has completed a successful demonstration of best practices for terrestrial sequestration of carbon dioxide (CO2) in biomass and soils.

New Mexico environmental agency holds hearings on WCI backup plan.
Van Ness Feldman August 23 2010
The New Mexico Environmental Improvement Board held hearings on a state-only emissions-reduction plan, which is intended as a backup plan to the WCI.

BlueGreen Alliance launches national campaign for climate legislation.
Van Ness Feldman August 23 2010
A coalition of environmental organizations and labor unions, the BlueGreen Alliance, has launched a nationwide publicity campaign intended to demonstrate public support for clean energy and climate change legislation.

EPA and NHTSA close to proposing GHG standards for heavy duty vehicles.
Van Ness Feldman August 23 2010
The Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration have completed work on a proposed joint rule that would establish greenhouse gas (GHG) emission limitations and fuel economy standards for heavy duty vehicles in model years 2014 through 2018.

CEQ extends comment period on guidance for GHG reporting.
Van Ness Feldman August 23 2010
The White House Council on Environmental Quality (CEQ) has issued a notice extending the public comment period for proposed guidance on methods for quantifying and reporting GHG emissions from Federal operations.

NY governor vetoes GHG measurement and reporting bills.
Van Ness Feldman August 23 2010
New York Governor David Patterson (D) vetoed a pair of bills focused on the measurement and reporting of GHG emissions in the state.

Senator Lowenthal proposes legislation to protect stationary sources in Southern California from unjustified Clean Air Act fee
Alston & Bird LLP August 23 2010
A little known provision of the federal Clean Air Act requires states or local air districts that do not attain the one-hour ozone standard by the target attainment date to impose a non-attainment fee on major stationary sources, presumably as an incentive to force those sources to further reduce emissions.

Federal report legitimizes carbon capture, notes barriers to its adoption
Bricker & Eckler LLP August 23 2010
A new federal report (pdf) finds that carbon capture and storage (CCS) is a viable technology, but notes that its widespread market acceptance will take decades absent government financial and policy support.

Money coming to Arizona for forest restoration
Lewis and Roca LLP August 23 2010
Northern Arizona's mountainous forest region is about to get trimmed down and cleaned up.

Toxic tort/state CERCLA: Vermont court rules migration of contaminants alone is insufficient to prove public nuisance
Shook Hardy & Bacon LLP August 20 2010
The Vermont Supreme Court has ruled that the offsite migration of contaminants is insufficient, in itself, to establish a public nuisance.

Regulated entities in Allegheny County (PA) and certain california counties, be aware: USEPA may take over GHG air permitting programs related to construction or modification projects
Reed Smith LLP August 20 2010
Certain larger emission sources of greenhouse gases (GHGs) will be subject to permitting requirements for planned construction projects starting January 2, 2011.

NRDC calls on federal agencies to ramp up seafood safety testing in Gulf
Shook Hardy & Bacon LLP August 20 2010
The Natural Resources Defense Council (NRDC) and nearly two dozen Gulf Coast organizations have requested that the Food and Drug Administration (FDA) and National Oceanic and Atmospheric Administration (NOAA) "strengthen the current protocols and data relied on to determine whether seafood is safe for consumption and when to re-open areas for fishing" after the massive oil spill that occurred in the Gulf of Mexico.

Michigan “brownfield” and clean-up law reforms
Barnes & Thornburg LLP August 20 2010
On Aug. 17, 2010, the Michigan State Senate passed sweeping reforms of Michigan’s Environmental Remediation Program, known as Part 201 of the Natural Resources and Environmental Protection Act (NREPA).

Major maritime reform efforts advancing in the the U.S. Congress go well beyond the deepwater horizon incident
Winston & Strawn LLP August 20 2010
Since shortly after the DEEPWATER HORIZON incident on April 20, 2010, the U.S. Congress has had under consideration numerous measures addressing not only drilling operations in the U.S. Gulf of Mexico, but also a host of other changes that could affect many other aspects of U.S. maritime commerce.

Court vacates APHIS deregulation of GM sugar beets; no new planting allowed for now
Shook Hardy & Bacon LLP August 20 2010
A federal court in California has decided to stop all new planting of genetically modified (GM) sugar beets in light of its September 2009 ruling that the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) violated environmental law when it deregulated the crop without conducting an appropriate environmental assessment

EPA proposes rules on implementation of permitting of greenhouse gas sources under the prevention of significant deterioration program
Van Ness Feldman August 17 2010
On August 12, 2010, the Environmental Protection Agency (EPA) released two proposed rules related to state and federal responsibilities for permitting sources of greenhouse gas (GHG) emissions under the Prevention of Significant Deterioration (PSD) provisions of the Clean Air Act (CAA).

The weakest link in greenhouse gas regulation? USEPA's tailoring rule
Reed Smith LLP August 17 2010
Implementing the Environmental Protection Agency's (USEPA's) regulation of greenhouse gases (GHGs) under the Clean Air Act (CAA) is a three link chain, and each link in the chain is necessary and determinative of the success of the program as a whole.

Franchising

Mass. case involving classification of franchisees raises concerns
Ballard Spahr LLP August 30 2010
On March 23, 2010, in Awuah, et al. v. Coverall North America, Inc., Judge William G. Young of the U.S. District Court for the District of Massachusetts granted the plaintiffs' motion for partial summary judgment finding that under state law, Coverall's Massachusetts franchisees had been misclassified as independent contractors.

Appellants' actions violated FTC acts
Winston & Strawn LLP August 23 2010
On August 16th, the Ninth Circuit affirmed the entry of summary judgment finding appellants civilly liable for making material misrepresentations and engaging in deceptive business practices in violation of the Federal Trade Commission Act and the FTC's Franchise Rule in their sale of internet kiosk business opportunities.

Two men and a lawsuit
Womble Carlyle Sandridge & Rice PLLC August 16 2010
Well, actually, it's one guy and a lawsuit.

General Practice

Prisoner capable of representing himself in a civil case was not entitled to appointment of counsel
Kelley Drye & Warren LLP August 26 2010
Ron Romanelli was incarcerated at the Columbia County Jail.

New York power of attorney law amended
Hunton & Williams LLP August 26 2010
On August 15, 2010, Governor Paterson signed into law a technical corrections bill amending New York’s power of attorney law (the “2010 Amendments”).

There's rules and there's rules
Archer Norris August 18 2010
On August 9th, the Second District reversed a trial court's dismissal of a personal injury/auto accident case on statute of limitations grounds.

Plaintiff ordered to file note of issue despite outstanding discovery requests
Goldberg Segalla LLP August 17 2010
In New York, the filing of the trial note of issue cuts off discovery and notifies the court that the matter is ready to be placed on the trial calendar.

Court clarifies standard for prima facie showing in support of summary judgment motion
Goldberg Segalla LLP August 17 2010
In Foster v. Herbert Slepoy Corp., __ A.D.3d __, 2010 N.Y. Slip Op. 5510 (2nd Dept. 2010) (June 22, 2010), the Appellate Division, Second Department, clarified what a snow removal contractor must show to establish its prima facie entitlement to summary judgment.

Release signed by skier not an adhesion contract
Goldberg Segalla LLP August 17 2010
In Chepkevich v. Hidden Valley Resort, 2010 Pa. LEXIS 1311 (Pa. 2010) (June 21, 2010), the plaintiff alleged a chair lift operator agreed to stop the lift so her nephew could more easily board it.

D.C. District Court finds warrantless GPS monitoring unconstitutional
Womble Carlyle Sandridge & Rice PLLC August 16 2010
On August 6, 2010, in United States v. Maynard, No. 08-3030, the United States Court of Appeals for the District of Columbia held that police violated the Fourth Amendment’s prohibition against unreasonable searches when they tracked a suspect’s movements with a GPS they had installed in his car, unbeknownst to him and without a valid warrant.

Notice from claimants is sufficient under policy
Goldberg Segalla LLP August 16 2010
The Bar Plan Mutual Insurance Company (“Bar Plan”) issued a legal malpractice policy to C. Bruce Davidson, Jr. providing coverage for claims arising out of legal malpractice.

Healthcare

HHS approves first EHR testing and certification bodies
Alston & Bird LLP August 30 2010
HHS has approved the Certification Commission for Health Information Technology (CCHIT) and the Drummond Group to test and certify electronic health records (EHRs) under the EHR temporary certification program.

Medical resident FICA -- action on individual refund claims
Proskauer Rose LLP August 30 2010
We have been closely following the medical resident FICA refund issue.

Healthcare news from Capitol Hill and the Department of Health and Human Services – August 30, 2010
Edwards Angell Palmer & Dodge August 30 2010
The Centers for Medicare and Medicaid Services (CMS) announced on August 18 that states have until September 24 to request an extension of the enhanced Federal Medical Assistance Percentage (FMAP) - the federal government's share of Medicaid funding.

FDA expediting menu labeling implementation and enforcement
Womble Carlyle Sandridge & Rice PLLC August 29 2010
The Food and Drug Administration (FDA) is expediting the enforcement of the Healthcare Reform law's food menu labeling provisions.

CMS comments due August 31 on physician ownership rule changes under PPACA
Baker Donelson Bearman Caldwell & Berkowitz PC August 27 2010
One dramatic and early impact of health care reform upon providers comes in the form of changes to the Stark law's "whole hospital" exception, which currently permits physicians to refer to hospitals in which they hold an ownership interest.

Is she a "resident" or a "billing physician"? CMS issues needed clarification
Ober Kaler August 27 2010
For years, a continuing source of confusion for academic medical centers has been whether particular individuals undertaking advanced training and labeled as "fellows" are considered to be "residents," paid for under the Medicare Direct Graduate Medical Education (DGME) and Indirect Medical Education (IME) formulae, or physicians whose services are reimbursed only through the Medicare Physician Fee Schedule.

Massachusetts health insurer settles with division of insurance on rate increases
Edwards Angell Palmer & Dodge August 26 2010
Earlier this month, the Massachusetts Division of Insurance (the "Division") struck a deal with Health New England to settle a dispute over rate increases.

Executive nominations
Buchanan Ingersoll & Rooney PC August 26 2010
Insurance Commissioner Joel Ario is leaving the administration to become the director of health insurance exchanges for the Office of Consumer Information and Consumer Oversight within the federal Department of Health and Human Services.

Countdown to release of the self-referral disclosure protocol
Foley & Lardner LLP August 25 2010
Health care providers have long struggled with the issue of how to deal with the discovery that they have been involved in violations of the Stark law.

FDA issues draft guidance regarding implementation of the new federal menu labeling requirements
Covington & Burling LLP August 25 2010
The healthcare reform legislation signed into law on March 23, 2010 includes section 4205 requiring nutrition labeling for standard menu items sold by chain restaurants with 20 or more locations doing business under the same name and offering substantially the same menu items.

Proposed revisions by HHS would facilitate research
Moses & Singer LLP August 25 2010
The Department of Health and Human Services (HHS) has issued a notice of proposed rulemaking (NPRM) entitled, "Modifications to the HIPAA Privacy, Security, and Enforcement Rules under the Health Information Technology for Economic and Clinical Health Act" (HITECH).

CMS answers frequently asked questions regarding electronic health record incentives
Fox Rothschild LLP August 24 2010
In July, the Centers for Medicare and Medicaid Services (CMS) released the much-anticipated final regulations that providers are required to meet in order to receive the Medicare incentives for adoption of a certified electronic health record system.

HHS releases proposed changes to HIPAA privacy, security and enforcement rules
Baker Donelson Bearman Caldwell & Berkowitz PC August 24 2010
On July 14, 2010, Secretary Kathleen Sebelius of the United States Department of Health and Human Services (HHS) published notice in the Federal Register of proposed rulemaking1 aimed at "strengthening" the Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy, security and enforcement regulations (collectively referred to as the "HIPAA Rules") and as required by the Health Information Technology for Economic and Clinical Health Act (HITECH Act), which was enacted as a part of the American Recovery and Reinvestment Act of 2009.

FDA reopens comment period to address oversight of laboratory-developed tests
Sidley Austin LLP August 24 2010
Last week the U.S. Food and Drug Administration (FDA or the Agency) announced that it would reopen the comment period until September 15, 2010 to provide additional time for stakeholders to submit comments—and to update already submitted comments—regarding the Agency’s oversight of laboratory developed tests (LDTs) (75 FR 5120).

An unclear future for stem cell research: district court orders federal government to halt embryonic stem cell research funding
Foley & Lardner LLP August 24 2010
On August 23, 2010, Chief Judge Royce C. Lamberth of U.S. District Court for the District of Columbia granted a preliminary injunction in a lawsuit challenging the new Guidelines for Human Stem Cell Research, which provided for federal funding of human embryonic stem cell (hESC) research.

ICD-10 implementation in a 5010 Environment follow-up provider call (Sept. 13, 2010)
Reed Smith LLP August 24 2010
CMS will host a follow-up national provider conference call on "ICD-10 Implementation in a 5010 Environment" on September 13, 2010.

Good intentions gone wrong: CMS proposes new rule to clarify home health agency 36 Month Rule
Waller Lansden Dortch & Davis LLP August 23 2010
The 36 Month Rule again has taken center stage as the Centers for Medicare and Medicaid Services (CMS) recently proposed new regulations governing ownership changes in the home health industry.

Standardized complaint form for skilled nursing facilities and nursing facilties
Bricker & Eckler LLP August 23 2010
The Secretary of HHS is required to develop a standardized complaint form for use by a resident (or a person acting on the resident’s behalf) in filing a complaint about a SNF or NF with a State survey and certification agency and a State long term care ombudsman program.

Ensuring staffing accountability for skilled nursing facilities and nursing facilties
Bricker & Eckler LLP August 23 2010
Beginning not later than two years after March 23, 2010, each NF and SNF must electronically submit to the Secretary of HHS direct care staffing information (including information with respect to agency and contract staff) based on payroll and other verifiable and auditable data in a uniform format as established by the Secetary of HHS.

Employer wins “cat's paw” case
Foley & Lardner LLP August 23 2010
On August 11, 2010, a federal court rejected a terminated employee's "cat's paw" argument.

Heeding the warning: increased international scrutiny of the pharmaceutical and medical device industry
Morgan Lewis & Bockius LLP August 23 2010
The Department of Justice (DOJ) under the Obama administration has announced on more than one occasion that it is targeting the healthcare industry for Foreign Corrupt Practices Act (FCPA) investigations, with a particular focus on pharmaceutical and medical device companies.

CMS revokes Medicare enrollment for failure to update information
Seyfarth Shaw LLP August 23 2010
Over the past few months, the Centers for Medicare and Medicaid Services (CMS) and the Texas Medicare contractor, Trailblazer Health Enterprises have initiated widespread enrollment revocation proceedings against numerous Texas physicians and health care suppliers.

Nurse staffing company–business due diligence tips
Seyfarth Shaw LLP August 23 2010
Many health care providers us the services of nurse staffing companies.

FTC obtains preliminary injunction against internet marketers making acai berry health claims
Shook Hardy & Bacon LLP August 20 2010
The Federal Trade Commission (FTC) has taken action against companies that sell acai berry supplements, "colon cleansers" and other products online by featuring false Oprah Winfrey and Rachael Ray endorsements and illegally billing customer credit cards.

Court may soon find cities cannot regulate or restrict dispensaries
Best Best & Krieger LLP August 20 2010
A long-anticipated Court of Appeal decision from the Fourth Appellate District held that the City of Anaheim's ban on marijuana dispensaries was contrary to California's Medical Marijuana Program Act ("MMPA") and not protected by preemptive federal law.

Plaintiff class alleges POM Wonderful® will not keep consumers young forever
Shook Hardy & Bacon LLP August 20 2010
A putative class action has been filed against the maker of POM Wonderful® pomegranate (PWP) juice in a Florida state court, alleging that the company is misleading consumers by marketing its product "as having special health benefits, including but not limited to, the prevention, mitigation, and or treatment of the following: (a) atherosclerosis; (b) Blood Flow/Pressure; (c) Prostate Cancer; (d) Erectile Function; (e) cardiovascular disease; (f) Reduce LDL cholesterol; (g) and other age related medical conditions.

Study alleges link between diet soft drinks and premature births
Shook Hardy & Bacon LLP August 20 2010
A recent study has purportedly linked consumption of carbonated diet sodas with an increased risk of premature birth.

Election data survey shows unions gaining traction in hospitals
Littler Mendelson PC August 19 2010
Littler recently reviewed union election results at hospitals over the last five years.

CMS listening session on extended observation care in hospitals (Aug. 24)
Reed Smith LLP August 18 2010
On August 24, 2010, CMS is hosting a listening session regarding the recent trend of Medicare beneficiaries receiving extended observation care as a hospital outpatient.

CMS forum on ESRD Quality Incentive Program (Aug. 24, 2010)
Reed Smith LLP August 16 2010
On August 24, 2010, CMS is hosting a Special Open Door Forum on the Medicare End Stage Renal Disease (ESRD) Quality Incentive Program (QIP) for payment year 2012.

Altered medical records exclusion deemed ambiguous
Goldberg Segalla LLP August 16 2010
Defendant Yassen Odeh was named as a defendant in a medical malpractice action instituted by the Estate of Tony Birriel.

Permitting physician assistants to order post-hospital extended care services
Bricker & Eckler LLP August 16 2010
This section adds physician assistants to the list of practitioners that are authorized to perform the certification and recertification for the medical necessity of post-hospital skilled nursing care.

Aetna wins motion seeking dismissal of hundreds of malpractice claims
Goldberg Segalla LLP August 16 2010
Physicians group Lonestar OB/GYN filed suit accusing the insurer of underpaying for services.

2011 proposed Medicare physician fee schedule clarifies Stark Law disclosure requirement for in-office ancillary services exception
Barnes & Thornburg LLP August 16 2010
Physicians who refer patients to their own in-office MRI, CT, or PET services should be aware of new guidance from CMS.

The ever-lengthening parade of PHI security breaches - the new paper chase of four Massachusetts community hospitals
Fox Rothschild LLP August 15 2010
This blog has been reporting on the effects on providers, insurers and others of the HIPAA/HITECH statutes and regulations that require public disclosure of breaches of unsecured Protected Health Information ("PHI").

FDA proposes changes to the 510(k) program; seeks public comment
Reed Smith LLP August 13 2010
FDA has made available for comment two reports from internal agency workgroups, one from the Center for Devices and Radiological Health (CDRH) 510(k) Working Group, and another from the Task Force on the Utilization of Science in Regulatory Decision Making.

NCc temporary certification program test tools and test procedures
Reed Smith LLP August 13 2010
The HHS Office of the National Coordinator for Health Information Technology (ONC) has published a notice announcing the availability of approved test tools and test procedures for thetesting of Complete Electronic Health Records (EHRs) and/or EHR Modules by ONC-Authorized Testing and Certification Bodies (ONC-ATCBs) under the ONC temporary certification program.

Hot off the feds’ press: the latest HIPAA and HITECH Act developments
Fox Rothschild LLP August 13 2010
It's been a busy summer for regulation of electronic health records and health privacy.

FDA announces medical device user fees for FY 2011, upcoming meeting (Sept. 12)
Reed Smith LLP August 13 2010
FDA announced the medical device user fees for FY 2011, which covers October 1, 2010 - September 20, 2011.

Medicare trustees report assesses ACA impact on trust funds
Reed Smith LLP August 13 2010
The annual report of the Medicare Board of Trustees, released August 5, 2010, concludes that the financial outlook for the Medicare Hospital Insurance (HI) and Supplemental Medical Insurance (SMI) Trust Funds has improved as a result of the ACA.

Senate Medicaid reform tour ends in Tallahassee
Holland & Knight LLP August 13 2010
At Florida State University's College of Medicine, Senate President-Designate Mike Haridopolos and other members of the Florida Legislature recently wrapped up a three-day statewide tour during which they discussed potential reforms to the state's Medicaid program.

FDA guidance on label comprehension studies for over-the-counter (OTC) drugs
Reed Smith LLP August 13 2010
FDA has issued a guidance document entitled "Label Comprehension Studies for Nonprescription Drug Products" to provide recommendations to industry on conducting label comprehension studies for OTC drug products.

ACA pre-existing condition insurance plan program
Reed Smith LLP August 13 2010
The OCIIO has published an interim final rule with comment period implementing the ACA's temporary high risk health insurance pool program.

What makes a hospital “charitable"? Billing and collection issues for charitable hospitals post-PPACA
Fox Rothschild LLP August 13 2010
Buried in PPACA is a section titled simply, "Additional Requirements for Charitable Hospitals."

Supplier standard final rule cleared by OMB
Reed Smith LLP August 13 2010
OMB has given final regulatory clearance to CMS's long-awaited final rule expanding the requirements suppliers of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) must meet to establish and maintain Medicare billing privileges.

Final Medicare Part D coverage gap discount program manufacturer agreement
Reed Smith LLP August 13 2010
CMS has finalized the model Manufacturer Agreement and model Third Party Administrator Agreement for the ACA Medicare Coverage Gap Discount Program.

CMS proposes streamlined approach for credentialing of telemedicine providers
Fox Rothschild LLP August 13 2010
On May 26, 2010, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule that would ease the burden for Medicare-participating hospitals and critical access hospitals (CAHs) when it comes to credentialing and privileging offsite telemedicine providers.

New law boosts Medicaid funding to states, modifies Medicaid AMP policy
Reed Smith LLP August 13 2010
On August 10, 2010, President Obama signed into law H R 1586, the Education Jobs and Medicaid Assistance Act.

FDA withdraws direct final rule requiring the submission of information on pediatric uses of devices
Reed Smith LLP August 13 2010
As Reed Smith previously reported, FDA issued a direct final rule and a corresponding proposed rule requiring sponsors of premarket approval applications (PMA), humanitarian device exemptions (HDE), and product development protocols (PDP) to submit data on pediatric populations for which the device is intended to treat diagnose, or cure, and the number of affected pediatric patients.

Final FY 2011 Medicare inpatient hospital, LTCH rates
Reed Smith LLP August 13 2010
On August 16, 2010, CMS is publishing its final rule updating Medicare hospital inpatient prospective payment systems (IPPS) and long term care hospital (LTCH) prospective payment system (PPS) rates for 2011.

Final health information breach notification rule withdrawn from OMB
Reed Smith LLP August 13 2010
The Department of Health and Human Services (HHS) has announced that it is withdrawing from Office of Management and Budget (OMB) consideration its final rule intended to govern breach notifications involving unsecured protected health information.

Capped rental DME
Reed Smith LLP August 13 2010
A recent OIG report, "A Review of Claims for Capped Rental Durable Medical Equipment," examined the extent to which Medicare erroneously allowed claims for routine maintenance and servicing and repair of beneficiary-rented and beneficiary-owned capped rental DME.

Guidance on whether radioactive studies require an investigational new drug (IND) application
Reed Smith LLP August 13 2010
FDA has published a guidance document entitled "The Radioactive Drug Research Committee: Human Research Without an Investigational New Drug Application," which provides information about the use of radioactive drugs for certain research purposes.

Potential legislative changes to improve quality of care for children
Reed Smith LLP August 13 2010
CMS is seeking public input as it develops recommendations for legislative changes to improve the quality of care provided to children under Medicaid and CHIP, including recommendations for quality reporting by the states, as mandated by the Children's Health Insurance Program Reauthorization Act of 2009.

Memorandum of understanding between FDA and CMS
Reed Smith LLP August 13 2010
The FDA and CMS have entered into a Memorandum of Understanding (MOU), effective June 25, 2010, to promote collaboration and enhance knowledge and efficiency by sharing information and expertise.

Interim final rules issued for grandfathered health plans under PPACA
Baker Donelson Bearman Caldwell & Berkowitz PC August 12 2010
On June 17, the Departments of Treasury, Labor, and Health and Human Services issued interim final rules for health plans relating to status as grandfathered health plans under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (PPACA).

Evolving Obama administration health care reform regulations will affect the health insurance industry
Foley & Lardner LLP August 11 2010
The Obama administration has begun the arduous task of implementing the recently passed Patient Protection and Affordable Care Act (PPACA), starting with reforms for the health insurance industry.

Aci food-borne illness conference in Chicago October 27 - 28, 2010
Stoel Rives LLP August 10 2010
American Conference Institute ("ACI") will hold its 4th National Conference on Food-Borne Illness Claims in Chicago, October 27 to 28.

Agency states interim final rule for breach notification effective until further notice
Littler Mendelson PC August 9 2010
On August 4, we posted about uncertainty created by the U.S. Department of Health and Human Services' (HHS) decision to withdraw its interim final regulations addressing security breach notification for breaches that involve protected health information (PHI) subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

Information Technology

Legislative outlook
Arent Fox LLP August 23 2010
The US House of Representatives and the US Senate are out of session.

Sign of the times
Williams Mullen August 23 2010
Do you or your clients sell goods from a retail location in Virginia?

One more breach notification bill arrives for the endless debutante ball
Steptoe & Johnson LLP August 21 2010
The Data Security and Breach Notification Act of 2010 (S. 3742) made its debut before the Senate Committee on Commerce, Science and Technology on August 5.

Congress flexes its muscles on cybersecurity
Steptoe & Johnson LLP August 21 2010
The U.S. Senate, by unanimous consent, passed S. 3611, the “Intelligence Authorization Act for Fiscal Year 2010,” which would require government agencies engaged in "cybersecurity programs" to make regular privacy assessments of those programs and report on them to Congress.

FTC closes data security investigation of P2P software provider
Kelley Drye & Warren LLP August 20 2010
On August 19, 2010, FTC staff closed an investigation into Limewire, LLC.

Practical guidance for cloud computing
Schottenstein Zox & Dunn Co LPA August 18 2010
Oracle CEO Larry Ellison recently compared the information technology (IT) industry to the fashion industry, and for good reason.

Overly broad discovery requests undercut attempt to prevent spoliation
Brooks Pierce McLendon Humphrey & Leonard LLP August 17 2010
As discovery of electronically-stored information ("ESI") becomes more prevalent and relevant in litigation, so too does litigation regarding the obligation to preserve ESI.

Senators introduce federal data breach notification bill
Womble Carlyle Sandridge & Rice PLLC August 16 2010
On August 5, 2010, the Chairman of the Senate Commerce Subcommittee on Consumer Protection, Product Safety, and Insurance Mark Pryor (D-AR) and Full Committee Chairman John Rockefeller (D-WV) introduced the "Data Security and Breach Notification Act of 2010," S. 3742, which would require businesses to protect personal information in their possession, to notify residents if that information is breached, and to adopt a data security policy.

Insolvency & Restructuring

A closer look at the equitable power of the Bankruptcy Court
Fox Rothschild LLP August 24 2010
On August 20, 2010, Petroflow Energy Ltd ("Petroflow"), filed a petition for bankruptcy in the United States Bankruptcy Court for the District of Delaware.

Chapter 7 trustee files preference complaints in National Wholesale Liquidators bankruptcy
Fox Rothschild LLP August 22 2010
Earlier this month Alfred T Giuliano, the Chapter 7 Trustee for National Wholesale Liquidators, began filing various complaints seeking the avoidance and recovery of alleged preferential transfers.

Collection against Collezione
Womble Carlyle Sandridge & Rice PLLC August 17 2010
Two items of interest in the on-going saga of intellectual property enforcement against bankrupt Collezione Europa and its principals, Paul and Leonard Frankel.

Liquidating Trustee of Intermet corporation files preference actions in Delaware
Fox Rothschild LLP August 15 2010
Earlier this month, the Liquidating Trustee in the Intermet bankruptcy filed preference actions against various defendants.

Decision in Qimonda bankruptcy looks at whether a conversion claim is entitled to administrative priority
Fox Rothschild LLP August 15 2010
On August 3, 2010, Judge Mary F Walrath of the United States Bankruptcy Court for the District of Delaware issued an opinion in the Qimonda bankruptcy addressing whether Google was entitled to an administrative claim against the Qimonda bankruptcy estate.

American Safety Razor files for bankruptcy, citing slow growth and increased competition
Fox Rothschild LLP August 12 2010
American Safety Razor Company ("ASR"), one of the largest manufacturers of shaving razors and blades, filed for bankruptcy protection in Delaware on July 28, 2010.

Ascendia Brands files over 200 preference actions in Delaware bankruptcy proceeding
Fox Rothschild LLP August 12 2010
In July of this year, Ascendia Brands, Inc, began filing preference actions against various defendants who allegedly received payments from Ascendia.

9th Cir says no PMSI in negative equity for "910 vehicle," split with other circuits
Kahrl Wutscher LLP July 20 2010
The U.S. Court of Appeals for the Ninth Circuit recently affirmed the decision of the Bankruptcy Appellate Panel that a creditor does not have a purchase money security interest in the negative equity of a vehicle traded in at the time of a new vehicle purchase.

Insurance & Reinsurance

“Bare averment” insufficient to maintain bad faith claim in New Jersey for underinsured-motorist benefits
Edwards Angell Palmer & Dodge August 30 2010
A New Jersey federal judge dismissed a bad-faith claim for underinsured-motorist benefits, finding that Plaintiff's complaint lacked necessary factual support and did not rise above the level of "bare averment."

Insurer's denial of business interruption claim, since there was no "accidental direct physical loss," affirmed by California Court of Appeal
Barger & Wolen LLP August 25 2010
On August 4, 2010, the California Court of Appeal for the Second Appellate District affirmed a summary judgment in favor of State Farm in connection with the insurer’s denial of a claim under a first party business interruption policy (MRI Healthcare Center v. State Farm General Insurance Company).

NAIC releases derivatives risk mitigation proposal for comment
Edwards Angell Palmer & Dodge August 24 2010
The National Association of Insurance Commissioners ("NAIC") has released a derivatives risk mitigation proposal ("Proposal") prepared by the American Council of Life Insurers ("ACLI") for interim comment.

Creation of the Federal Insurance Office and the Financial Stability Oversight Council
Duane Morris LLP August 24 2010
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("the Act") begins sweeping reform for the U.S. financial system.

CFPA Q&A: how big will the bureau be?
Foley & Lardner LLP August 24 2010
Big.

Allegations of fraudulent inducement related to a settlement agreement may constitute a claim
Wiley Rein LLP August 19 2010
The United States District Court for the Eastern District of Pennsylvania has denied an insurer's motion for summary judgment, holding that a question of fact existed as to whether allegations of fraudulent inducement related to a settlement agreement constituted a claim against the insured under a professional liability policy.

Eighth Circuit holds that class actions under California Unfair Competition Law must meet federal standing requirements for absent class members
Mayer Brown LLP August 17 2010
The US Court of Appeals for the Eighth Circuit has held that a federal court cannot certify a class action seeking monetary relief under California's Unfair Competition Law (UCL) unless the class meets federal standing requirements.

Prevailing insured may recover legal fees, even for out-of-state litigation
Goldberg Segalla LLP August 17 2010
New Jersey Rule 4:42-9(a)(6) allows fee shifting in "an action upon a liability or indemnity policy of insurance in favor of a successful claimant."

Party must show “some success on the merits” to obtain attorney’s fees
Goldberg Segalla LLP August 17 2010
The award of attorney's fees in ERISA actions is governed by 11 U.S.C. § 1132(g)(1).

Lloyd’s underwriters must reveal “names” to establish jurisdiction
Jorden Burt LLP August 16 2010
Certain Underwriters at Lloyd's, London brought suit in Florida federal court to seek adjudication of the binding effect of a purported settlement agreement it had entered with insureds pertaining to coverage for an underlying all terrain vehicle accident.

Cochran firm seeks coverage for spy case
Goldberg Segalla LLP August 16 2010
A client of the Cochran firm filed suit alleging the firm failed to help her recoup a multi-million dollar judgment from a suit she launched against the Cuban government after she learned her husband was actually a Cuban spy.

Prior notice exclusion bars coverage for subsequent lawsuits
Goldberg Segalla LLP August 16 2010
In 1998, Community Bank (“Community”) loaned money to Thomas Foxsworthy & Associates (“TFA”) for the purchase and redevelopment of a piece of commercial real estate.

Check your insurance policy, and the case law, again
Fox Rothschild LLP August 16 2010
I'm not sure why we can't seem to settle the question of what IP litigation is covered under the typical Comprehensive General Liability insurance policy.

Court holds that costs incurred in affirmative lawsuit inextricably intertwined with insured's defense are covered
Wiley Rein LLP August 12 2010
The United States District Court for the Eastern District of Pennsylvania has held that an insured is entitled to reimbursement for attorneys' fees incurred in the defense of a petition for sanctions and in connection with an affirmative claim for wrongful use of civil proceedings and breach of contract.

Florida 2010 insurance legislation: ambitious goals, limited success, and gubernatorial vetoes
Foley & Lardner LLP August 11 2010
When the Florida Legislature began its 2010 regular session on March 2, 2010, the insurance industry and its supporters hoped to achieve several ambitious goals.

Ninth Circuit denies petition for writ of mandamus; lower court's ruling that sharing documents with reinsurer waives privilege and work product protection stands
Foley & Lardner LLP August 11 2010
In 2007, Regence Group filed suit in the U.S. District Court for the District of Oregon against TIG Specialty Insurance Group (TIG) alleging breach of contract, bad faith, and fraud in connection with TIG's refusal to provide coverage to Regence for certain RICO claims.

How will recent changes in patent eligibility influence the insurance industry?
Foley & Lardner LLP August 11 2010
Two important recent events are likely to influence the patenting of inventions related to the insurance industry.

What changes does the Dodd-Frank Act bring to the insurance and reinsurance industry?
Foley & Lardner LLP August 11 2010
On July 15, 2010, the Senate passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Act).

District court denies application to certify “follow the settlements” issue
Goldberg Segalla LLP August 3 2010
In a dispute of reinsurance coverage, a reinsurer filed a breach of contract action against its reinsured for allegedly mishandling a large number of claims covered under their agreement.

Guy Carpenter files suit to recoup brokerage fees involving the procurement of reinsurance coverage
Goldberg Segalla LLP August 3 2010
This action arises out of a dispute over brokerage fees for placing reinsurance coverage.

Bond reinsurance suit is filed for bailing on bond insurance policy involving Iowa water company
Goldberg Segalla LLP August 3 2010
A New York Monoline bond insurer filed suit against its reinsurer for bailing on a contract and compelling it to assume responsibility for a bond insurance policy issued by the insurer after the policy became risky and unprofitable.

Intellectual Property

Circular beach towel's trademark is invalid
Kelley Drye & Warren LLP August 27 2010
In the late 1980s, Clemens Franek sought and received trademark registration status for his "radical" round beach towel.

Custom furniture: innovative plan or illegal imitation?
Womble Carlyle Sandridge & Rice PLLC August 26 2010
Today's Wall Street Journal, San Francisco Bay Area edition, includes a very interesting article on start up furniture companies whose business model includes reproducing popular furniture designs on a custom basis.

The Jumpitz Corp. v. Viacom International, Inc.
Loeb & Loeb LLP August 25 2010
Addressing Viacom’s trade dress infringement claim based on a children’s performance group’s use of an animated graphic depicting an orange shooting star splattering, district court finds that the Sleekcraft factors weigh in favor of finding a likelihood of confusion with Viacom’s orange “splat” logo used by Nickelodeon but enters judgment in favor of performance group on the trade dress claim based on Viacom’s asserted “visual system” combining a color scheme with particular shapes because Viacom did not demonstrate that the system was nonfunctional or had acquired a secondary meaning.

A few problems with licences and how to avoid them
Kenyon & Kenyon LLP August 25 2010
It is said that those who do not learn from their mistakes are bound to repeat them.

Alterations to the Design Piracy Prohibition Act: Innovative Design Protection and Piracy Prevention Act ("IDPPPA")
Bullivant Houser Bailey PC August 24 2010
Design piracy has long been considered a problem by some in the fashion industry and a boon by others.

Although an attorney is free to argue vigorously in favor of patentability without being subject to allegations of inequitable conduct, the law prohibits genuine misrepresentations of material fact
Winston & Strawn LLP August 24 2010
The patent-in-suit disclosed a software–based algorithm and method for generating and delivering messages over a phone line during a “ringing signal” period.

Commission declines review of ID granting joint motion to terminate based on settlement
McDermott Will & Emery August 24 2010
The Commission issued a notice that it has determined not to review a July 29, 2010 initial determination by Chief ALJ Luckern granting a joint motion to terminate two respondents in Inv.

The Innovative Design Protection and Piracy Prevention Act: will design protection be in vogue in congress?
Sheppard Mullin Richter & Hampton LLP August 24 2010
On August 6, 2010 Senator Charles Schumer (D-NY), introduced a bill entitled the Innovative Design Protection and Piracy Prevention Act ("IDPPPA") (S. 3728), which represents a compromise between the American Apparel & Footwear Association ("AAFA") and the Council of Fashion Designers of America ("CFDA") in an effort to afford protection to American designers for new and original fashion designs.

This week in biofuels, a patent perspective
Stoel Rives LLP August 23 2010
The US and PCT patent organizations published the following patents and applications during the week of August 15, 2010.

Supreme Court keeps business method and software patents alive
Roetzel & Andress August 23 2010
On June 28, 2010, the Supreme Court of the United States issued its first opinion since 1980 on the difficult issue of deciding what type of subject matter is patentable in the case of Bilski v. Kappos.

Bizarre patents
Roetzel & Andress August 23 2010
Anti-eating Face Mask (U.S. 4,344,424) - A mask worn on the head of a user to prevent the consumption of food.

Justice Department creates intellectual property task force
Roetzel & Andress August 23 2010
As a result of a December 2009 summit held by Vice President Joe Biden and Attorney General Eric Holder, the Justice Department recently introduced the creation of an Intellectual Property (IP) task force.

Patent Stimulus Package -a cure for an ailing economy?
Burns & Levinson LLP August 18 2010
The Patent Stimulus Package is not WPA for patent attorneys and it is not a way for patent attorneys to get big bonuses, not that I would oppose that!

Business methods dodge bullet in Bilski
Schottenstein Zox & Dunn Co LPA August 18 2010
It was thought that the decision of the Supreme Court in Bilski v. Kappos, No. 08-964, 561 U.S. ____ (2010) would finally bring some clarity, if not finality, to the issue of whether business methods are "processes" that can be patented.

Proposed multi-track patent examination process
Schottenstein Zox & Dunn Co LPA August 18 2010
In early June, the U.S. Patent and Trademark Office (USPTO) published proposed changes to the patent application examination process under its Enhanced Timing Control Initiative.

"X-frame" chair design not protected trade dress
Womble Carlyle Sandridge & Rice PLLC August 18 2010
The United States Court of Appeals for the Seventh Circuit ruled August 11, 2010 that Greenwich Industries, LP's "x-frame" folding chair design was functional and thus ineligible for protection even as a common law trademark.

Benchmade Knife Co., Inc. v. Benson D/B/A RoadsideImports, LLC
Stoel Rives LLP August 18 2010
When things go wrong for Mr. Benson, they all go wrong.

Dino-Lite put under the microscope
Stoel Rives LLP August 17 2010
Computer Stores Northwest, Inc. (CSNW), based in Oregon, and Scalar Corporation (Scalar), a Japanese corporation, have sued Dunwell Tech, Inc. (Dunwell) for infringing U.S. Patent No. 5,442,489 [PDF] (the ’489 patent).

Home Meridian sues Baby's Dream Furniture
Womble Carlyle Sandridge & Rice PLLC August 17 2010
On August 13, 2010, Home Meridian International, Inc. ("HMI") filed suit in the Middle District of North Carolina against Baby's Dream Furniture, Inc. ("Baby's Dream") (Civil Action NO. 1:10-CV-625 (M.D.N.C.).

Two men and a lawsuit
Womble Carlyle Sandridge & Rice PLLC August 16 2010
Well, actually, it's one guy and a lawsuit.

Sublicenses by exclusive licensees of copyrights - copyright "clarification" may change the law
Sheppard Mullin Richter & Hampton LLP August 16 2010
A change in the rules on copyright licensing may be coming in the near future and from an unexpected and unanticipated source.

Beach Boys vs. “California Gurls”
Brooks Pierce McLendon Humphrey & Leonard LLP August 11 2010
Singer Katy Perry, of "I kissed a girl, and I liked it" fame, has been threatened with a lawsuit over her use of the Beach Boys' timeless line, "I wish they all could be California Girls," in her hit song "California Gurls."

Parties proceed with Markman briefing in Epson Inkjet cases
Stoel Rives LLP August 2 2010
The parties have filed their Markman briefs and supporting declarations in each of the five pending Epson Inkjet Cartridge cases.

Leisure & Tourism

Update on Utah's privatization process
Stoel Rives LLP August 27 2010
As we previously reported, Utah is considering privatizing at least some aspects of its liquor control.

Litigation

Salmonella litigants close to settling claims against Peanut Corp
Shook Hardy & Bacon LLP August 27 2010
A magistrate judge has reportedly recommended that the trustee in bankruptcy for the Peanut Corp. of America (PCA), responsible for a Salmonella outbreak linked to nine deaths and hundreds of illnesses, distribute $12 million to resolve the tort claims of 120 individuals.

To catch a thief... ten years later
Day Pitney LLP August 25 2010
No actual loss to a financial institution is required to double the otherwise applicable five-year statute of limitations for criminal prosecution for mail and wire fraud, according to the Tenth Circuit.

Splitting hairs too finely
Day Pitney LLP August 25 2010
A grand-jury witness can't be too cute when answering the government's questions.

A sentence by any other judge would be as short (or long)
Day Pitney LLP August 25 2010
The DOJ asked the U.S. Sentencing Commission to investigate the propensity of judges to ignore the sentencing guidelines, especially in the white-collar crime area.

The Third Circuit Court of Appeals clarifies the idea statute of limitations
Fox Rothschild LLP August 24 2010
The Third Circuit Court of Appeals has put to rest the issue of how to apply the statute of limitations added to the IDEA in 2005 to claims that existed prior to its addition.

NJ Supreme Court reaffirms: foreign manufacturers subject to NJ jurisdiction
Greenbaum, Rowe, Smith & Davis LLP August 24 2010
In Nicastro v. McIntyre Machinery America Ltd., 201 N.J. 48 (2010), the New Jersey Supreme Court held that New Jersey had jurisdiction over a foreign manufacturer in a products liability action under the stream-of-commerce theory because the manufacturer knew or should have known that the distribution system through which its products were being sold targeted a fifty-state market and the product might end up in New Jersey.

E-discovery: a fact of life
Greenbaum, Rowe, Smith & Davis LLP August 24 2010
Every business owner needs to understand that electronic discovery or "e-discovery" is a fact of life in all litigation today.

Developments in intercarrier compensation
Arent Fox LLP August 23 2010
On August 16, 2010, Sprint Communications Company filed a complaint against Native American Telecom, LLC (NAT) with the US District Court for the District of South Dakota, alleging that NAT is unlawfully billing Sprint for traffic destined for so-called "Call Connection Companies."

Court contemplates the meaning of "sue"
Winston & Strawn LLP August 23 2010
On August 17th, the Ninth Circuit discussed the meaning of "sue" as used by the Credit Repair Organization Act.

Sign of the times
Williams Mullen August 23 2010
Do you or your clients sell goods from a retail location in Virginia?

Employer wins “cat's paw” case
Foley & Lardner LLP August 23 2010
On August 11, 2010, a federal court rejected a terminated employee's "cat's paw" argument.

In the courts
Arent Fox LLP August 23 2010
On August 11, 2010, the US District of New York for the Northern District of New York (NDNY) became the second court in as many weeks to deny a request by Level 3 Communications to freeze litigation brought against it for failure to pay for operation of its broadband network over a plaintiff's property (see last week's This Week In Telecom for a summary of the Idaho case).

Trade association may appear as amicus, but can't intervene
Brooks Pierce McLendon Humphrey & Leonard LLP August 20 2010
An entity can be interested (legally) in the outcome of a lawsuit, or it may simply be interested (in the go-sports-team-from-my-hometown-or-university! sense) in the outcome.

Washington upholds property transfer by canceled LLC
Stoel Rives LLP August 20 2010
What happens to property owned by a canceled LLC?

FTC asked to order rental car company to fix recalled vehicles before renting them
Shook Hardy & Bacon LLP August 19 2010
A petition filed with the Federal Trade Commission (FTC) calls on the agency to order Enterprise-Rent-A-Car to fix every vehicle subject to a safety recall before renting them.

New Mexico court clarifies standard on extraneous juror communications in defective seat belt case
Shook Hardy & Bacon LLP August 19 2010
The New Mexico Supreme Court has changed the "presumption of prejudice" that attaches to extraneous juror communications to a standard that requires a party moving for a new trial based on such communications to prove a reasonable probability of prejudice.

Court of Appeal affirms multi-million dollar settlement despite vigorous objections
Sheppard Mullin Richter & Hampton LLP August 18 2010
On July 28, 2010, the Court of Appeal, First District, modified and published the opinion in Cellphone Fee Termination Cases.

Benchmade Knife Co., Inc. v. Benson D/B/A RoadsideImports, LLC
Stoel Rives LLP August 18 2010
When things go wrong for Mr. Benson, they all go wrong.

Executive sessions for litigation under the PA Sunshine Act
Fox Rothschild LLP August 18 2010
In what should have been an obvious decision, the PA Commonwealth Court recently gave guidance to public bodies holding executive sessions related to litigation matters.

When access and control will not render a record public
Fox Rothschild LLP August 17 2010
The Commonwealth Court recently issued a decision in the Court of Common Pleas of Lackawanna County v the Pennsylvania Office of Open Records and Lackawanna County, No. 35 M.D. 2010 (Pa. Cmwlth.).

Crime victims do not have protected property interest in adequate police investigation
Goldberg Segalla LLP August 17 2010
In Harrington v. County of Suffolk, 607 F.3d 31(2d Cir. 2010) (June 4, 2010), the Second Circuit upheld the dismissal of plaintiffs’ complaint for failure to state a claim.

Class action brought under California consumer protection laws allowed to proceed against generic drug manufacturer and distributor
Goldberg Segalla LLP August 17 2010
In In Re: Budeprion XL Marketing & Sales Litigation, 2010 U.S. Dist. LEXIS 51980 (E.D. Pa. 2010) (May 26, 2010), the district court for the Eastern District of Pennsylvania denied defendants’ motion to dismiss plaintiffs’ nationwide class action seeking restitution and injunctive relief under California consumer protection laws arising from adverse side effects plaintiffs suffered after switching from the name brand antidepressant Wellbutrin to generic forms of the drug.

Pennsylvania Commonwealth Court provides direction in residency hearings
Fox Rothschild LLP August 16 2010
In the recent case of Behm v Wilmington Area School District, the Pennsylvania Commonwealth Court provided some clarity on the due process rights of parents involved in a residency dispute with a school district.

Seventh Circuit rules wrong standard used to determine eligibility of special education services under the IDEA
Franczek Radelet PC August 16 2010
In Marshall Joint School District No. 2 v. C.D., the Seventh Circuit reversed the decision of an administrative law judge (ALJ) and the district court and held that a student was not entitled to special education services under the IDEA.

Two men and a lawsuit
Womble Carlyle Sandridge & Rice PLLC August 16 2010
Well, actually, it's one guy and a lawsuit.

Blizzard wins big against unauthorized secondary market provider
Pillsbury Winthrop Shaw Pittman LLP August 16 2010
A California Court ruled last week in favor of Blizzard, finding that Scapegaming (a.k.a. Alyson Reeves) ran an unauthorized secondary market that handled microtransactions in violation of the World of Warcraft terms of service.

Concealment of breach of fiduciary duty tolls the Alabama statute of limitations
Stoel Rives LLP August 12 2010
Here's a case for you.

Motion to dismiss based upon forum non conveniens denied, despite presence of foreign defendants and application of foreign laws
Sheppard Mullin Richter & Hampton LLP August 9 2010
On June 25, 2010, Justice Shirley Werner Kornreich of the Commercial Division issued a Decision and Order, inter alia, denying several foreign defendants' motion to dismiss based upon forum non conveniens.

No more kicking and screaming
Archer Norris August 9 2010
Mercifully, the Supreme Court has ended the summary judgment evidence ruling waiver debate.

11th Cir says no CAFA subject matter jurisdiction unless at least one putative class member meets $75k amount in controversy
Kahrl Wutscher LLP July 23 2010
The U.S. Court of Appeals for the Eleventh Circuit recently held that the lower court lacked subject matter jurisdiction to hear Plaintiff’s class action suit originated in that court and brought under the Class Action Fairness Act (“CAFA”) where the plaintiff failed to allege that at least one class member had an amount in controversy greater than $75,000.

Media & Entertainment

FCC license renewal application cycle begins in less than a year - what stations should be doing to get ready
Davis Wright Tremaine LLP August 24 2010
Are you ready to file your next license renewal application?

FTC closes data security investigation of P2P software provider
Kelley Drye & Warren LLP August 20 2010
On August 19, 2010, FTC staff closed an investigation into Limewire, LLC.

FCC launches new round of audits of radio station EEO performance
Davis Wright Tremaine LLP August 19 2010
Even though there has been a request to put on hold the FCC's EEO enforcement, filed by a prominent Washington DC organization that promotes the participation of minorities and new entrants in broadcast employment and ownership positions, the FCC today announced that it is launching another round of EEO audits - this time only auditing radio stations.

NAD: discontinue “soap scum” references
Manatt Phelps & Phillips LLP August 18 2010
The National Advertising Division recently recommended that Unilever, maker of Dove brand soap products, discontinue claims made for its Dove Beauty Bar in a challenge made by Colgate-Palmolive, the maker of Irish Spring bar soap.

Trust Agreements for SAG - Producers P&H plans
Reed Smith LLP August 17 2010
The following documents constitute the Trust Agreements for the Screen Actors Guild.

Non-profit Organizations

Traps for the unwary - tips to ensure enforceability of charitable pledges
Haynes and Boone LLP August 25 2010
When a donor attempts to cancel or withdraw from a charitable pledge, many organizations choose not to enforce the pledge in the spirit of donor and public relations.

Private Client & Offshore Services

2010 revisions to New York power of attorney statute take effect September 12
Katten Muchin Rosenman LLP August 24 2010
New York has further amended its power of attorney statute to address some of the issues caused by the sweeping changes made to the statute, which went into effect on September 1, 2009.

Product Liability

A reportable food registry toolkit
Stoel Rives LLP August 30 2010
This article was first published on August 27, 2010 in Food Chemical News as part of its "On the Front Burner" series.

Obama to appoint key food safety official
Shook Hardy & Bacon LLP August 27 2010
President Barack Obama (D) recently announced his intention to “recess appoint” Elisabeth Hagen as the U.S. Department of Agriculture’s (USDA’s) under secretary for food safety.

House members seek documents, schedule hearing on tainted-egg recall
Shook Hardy & Bacon LLP August 27 2010
Representative Rosa DeLauro (D-Conn.), who chairs the Food and Drug Administration (FDA) and U.S. Department of Agriculture (USDA) appropriations subcommittee, is seeking information from the agencies about the unfolding Salmonella outbreak linked to two Iowa egg producers.

Consumer Product Safety Commission proposes rules for report of harm database
Buchanan Ingersoll & Rooney PC August 26 2010
On May 24, 2010, the Consumer Product Safety Commission issued a notice of proposed rulemaking that that would establish a publicly available consumer product safety information database.

Flammable Fabrics Act - a reminder for importers and retailers
Dorsey & Whitney LLP August 26 2010
The Flammable Fabrics Act (FFA), 15 U.S.C. 1191 et seq., was passed in 1953 in response to public concern over serious burn incidents involving brushed rayon high pile sweaters (referred to as "torch sweaters") and children's cowboy chaps which ignited easily and flash burned.

Do shippers and carriers face a federal food fight? FDA seeks information on implementation of Sanitary Food Transportation Act of 2005
Strasburger & Price LLP August 24 2010
Comments must be filed by August 30, 2010 in response to an Advance Notice of Proposed Rulemaking (ANPRM) published by the Food & Drug Administration (FDA) to implement the Sanitary Food Transportation Act of 2005 (SFTA-2005).

The great egg recall of 2010: another review of lessons already taught
Stoel Rives LLP August 20 2010
You have probably heard about the great egg recall of 2010, which has required Wright County Eggs of Galt, Iowa to recall an ever-growing number of shell eggs because of fears of salmonella enteriditis.

Product liability - CPSC online database is becoming a reality – are you ready?
Baker & Daniels LLP August 19 2010
The Consumer Products Safety Commission (CPSC) is poised to launch its online searchable database of "reports of harm" received by the Commission.

Professional Negligence

Projects & Procurement

Understanding "beginning construction" under section 1603
Stoel Rives LLP August 27 2010
The Treasury Department recently issued a series of FAQs in an effort to clarify when projects will be treated as having "begun construction" for purposes of the section 1603 grant.

Poll shows support for transportation spending
Buchanan Ingersoll & Rooney PC August 26 2010
Governor Rendell released results of a poll that tested Pennsylvanians' attitudes toward their transportation infrastructure and its funding needs, saying it demonstrates support for an increase in infrastructure revenues.

Stimulating the stimulus: capturing federal dollars for your infrastructure projects
Squire Sanders & Dempsey LLP August 25 2010
Since 2000, more than $24 billion has been allocated to fund construction or renovation of more than 320 sports, arts, recreation and convention infrastructure facilities.

Mission impossible? With a proven track record combating procurement fraud, the National Procurement Fraud Task Force takes on a new mission: Recovery Act and other financial fraud
Latham & Watkins LLP August 24 2010
Earlier this year, the Department of Justice (DOJ) outlined an expanded mission for the National Procurement Fraud Task Force (NPFTF or Task Force): redressing fraud which underlay the financial crisis and perpetrated under the American Recovery and Reinvestment Act of 2009 (Recovery Act).

Improper Payments Elimination Act provides opportunities for contractors
Sheppard Mullin Richter & Hampton LLP August 17 2010
On July 22, 2010, President Obama signed into law the Improper Payments Elimination and Recovery Act of 2010 (the "Act").

Public

Feds create $282 million state budget shortfall
Buchanan Ingersoll & Rooney PC August 26 2010
Federal legislation signed into law August 11 has left Pennsylvania with an approximately $282 million budget shortfall according to figures from the Budget Office.

Political grapevine
Buchanan Ingersoll & Rooney PC August 26 2010
After 10 years representing the 45th district, Senator Sean Logan (D-Allegheny) will resign from the Senate this week and assume the role of vice president of community relations for the University of Pittsburgh Medical Center (UPMC).

Committee meeting calendar
Buchanan Ingersoll & Rooney PC August 26 2010
The committee will hold a public hearing on H.B. 2619 (amends Titles 53 (Municipalities Generally) and 66 (Public Utilities) to provide for municipal aggregation of electric generation supply).

Marcellus Shale update
Buchanan Ingersoll & Rooney PC August 26 2010
The 2010-2011 budget requires the general assembly to consider a natural gas extraction tax bill by October 1.

The United States Department of Agriculture issues research misconduct regulations
Hogan Lovells August 25 2010
On August 13, the United States Department of Agriculture (USDA) issued regulations on research misconduct in USDA-sponsored extramural research.

Florida government and politics special edition: primary election results
Foley & Lardner LLP August 25 2010
In the contest for the Republican nomination for governor, Rick Scott defeated Attorney General Bill McCollum.

Democratic gubernatorial candidate sink taps former state Sen. Smith as her running mate
Foley & Lardner LLP August 23 2010
On August 17, 2010, Democratic gubernatorial candidate Sink announced that former state Sen. Rod Smith (D-Alachua) would be her candidate for lieutenant governor in the 2010 general election.

Final round of polling shows solid leads for Attorney General McCollum and Rep. Meek in the August 24 primary elections
Foley & Lardner LLP August 23 2010
Two polls conducted just before Florida's August 24, 2010 primary elections show solid leads for Attorney General Bill McCollum in the race for the Republican gubernatorial nomination and U.S. Rep. Kendrick Meek (D-17th Congressional District) in the Democratic contest for the U.S. Senate.

Public Service Commission Nominating Council sends Gov. Crist seven nominees for two vacancies
Foley & Lardner LLP August 23 2010
On August 19, 2010, the Florida Public Service Commission Nominating Council recommended seven candidates for two vacancies on the Florida Public Service Commission.

A mandatory exercise for Pennsylvania school districts commencing bargaining with their teachers' unions
Fox Rothschild LLP August 20 2010
Those Pennsylvania school districts that have aid ratios of less than .4 (the wealthier school districts in the Commonwealth of Pennsylvania) are looking at historically low Act 1 indices for the next few years.

Remember that political ads by state and local candidates need to have candidate's recognizable voice or picture to be a use
Davis Wright Tremaine LLP August 18 2010
While most of the FCC's political broadcasting rules have remain unchanged for almost 20 years, each year there are a few new wrinkles that arise, and seemingly a few misconceptions that make the rounds among advertising agencies that work with political candidates.

House rejects “no assembly” resolution
Van Ness Feldman August 16 2010
By a procedural vote of 236 to 163, the House of Representatives rejected a resolution offered by Rep. Tom Price (R-GA) that would have prevented the House from holding a lame duck session between the November elections and January 3, 2011 except in the event of a national emergency.

Polls show varied outcomes as Floridians begin early voting
Foley & Lardner LLP August 16 2010
Florida will hold its 2010 primary elections on August 24, 2010, but early voting began on August 9.

Florida will receive $1.3 billion in federal funds; state revenue projections revised upward
Foley & Lardner LLP August 16 2010
Under federal legislation signed into law on August 10, 2010, Florida is slated to receive an additional $1.3 billion in federal funds.

Securitization & Structured Finance

Shipping & Transport

Telecommunications

FCC preparing multiple "junk fax" enforcement actions
Kelley Drye & Warren LLP August 29 2010
There has not been an official announcement, but indications are strong that the FCC is planning soon to issue a number of forfeitures and proposed forfeitures for the sending of so-called "junk faxes."

Filer beware: FCC affirms tough stance on late-file universal service forms
Kelley Drye & Warren LLP August 26 2010
In stark contrast to the Bureau's more liberal waiver policy for recipients of Universal Service Funds, the Wireline Competition Bureau recently released orders affirming a tough stance for contributors who miss USF filing deadlines.

Compliance notes
Arent Fox LLP August 23 2010
Completed Local Competition and Broadband Reports (FCC Form 477) are due to the FCC September 1, 2010.

Stimulus this week
Arent Fox LLP August 23 2010
On August 18, 2010, Vice President Biden announced 94 grants for broadband projects under the Broadband Technology Opportunities Program (BTOP), administered by the National Telecommunications and Information Administration (NTIA).

Broadband news
Arent Fox LLP August 23 2010
This week it was reported that numerous Internet and telecommunications companies met to discuss Open Internet issues at the offices of the Information Technology Industry Council, but without the involvement of FCC officials.

Federal Communications Commission (FCC) announcements
Arent Fox LLP August 23 2010
The FCC has released the Seventh Broadband Notice of Inquiry in which it seeks comment on the definition of "advanced telecommunications" as well as the proper metrics for evaluating broadband and whether broadband has been deployed sufficiently.

FCC rejects applicants' attempts to modify funding requests months after funding window had closed
Womble Carlyle Sandridge & Rice PLLC August 11 2010
In a recent order, the Federal Communications Commission ("Commission") affirmed five decisions by the Universal Service Administrative Company ("USAC") to deny funding to applicants that had submitted substantive changes to their funding requests months after the window had closed.

Trade & Customs

Import of US rice
Blake Lapthorn August 25 2010
Import restrictions on the import of rice from the US have been lifted.

Round 2: encryption controls streamlining
Reed Smith LLP August 12 2010
The US Department of Treasury, Bureau of Industry and Security ("BIS") published "streamlining" changes to the encryption controls on June 25, 2010.

Enforcement highlights: April 2010 - June 2010
Reed Smith LLP August 12 2010
On April 28, 2010, Emenike Charles Nwankwoala, of Laurel, Maryland, pleaded guilty to exporting arms without a license, exporting controlled goods without a license, and willful delivery of a firearm to a common carrier without notice.

White Collar Crime

Shutting down corporate pick-pockets
Gardere Wynne Sewell LLP August 24 2010
A 10-year employee accounting manager systematically transfers amounts via ACH to her personal checking account.

Concealment of breach of fiduciary duty tolls the Alabama statute of limitations
Stoel Rives LLP August 12 2010
Here's a case for you.

Vietnam

Banking

2010 Law on Credit Institutions
Mayer Brown LLP August 13 2010
The 12th National Assembly of Vietnam ("NA") passed the new Law on Credit Institutions at its seventh session on 16 June 2010 ("2010 Law on Credit Institutions" or "New Law").

Energy & Natural Resources

Vietnam sets up steering committee for first nuclear power plants
Mayer Brown LLP August 26 2010
Under Resolution 41/2009/QH12 dated 25 November 2009, the Vietnamese National Assembly approved investment in the Ninh Thuan Nuclear Power Project, comprising two plants each having two turbines, to supply electricity to the national power grid.