Africa

White Collar Crime

Doing business in Africa while ensuring compliance with the FCPA
Baker & McKenzie January 25 2012
The African continent today is a land of both vast opportunity and significant risk for corporations and investors alike.

Argentina

Corporate Tax

Extension of the benefit of reduction of employers’ social security contributions
Marval O'Farrell & Mairal January 17 2012
By Decree No. 298/2011, duly published on December 30, 2011 in the Official Gazette, the Government has extended until December 31, 2012 the Tax Adjustment, Employment Promotion and Protection of Registered Employment benefit scheme, established by section 16 of Law No. 26,476.

Employee Benefits & Pensions

Asia-Pacific

Information Technology

APEC leaders endorse regional data privacy and protection scheme
Steptoe & Johnson LLP January 21 2012
Late last year, Asia-Pacific Economic Cooperation leaders endorsed and declared their intent to implement a new regional data privacy and protection scheme.

Australia

Arbitration

Domestic commercial arbitration reform – developments around Australia
Norton Rose February 2 2012
In July 2010, new legislation governing international arbitration in Australia, the International Arbitration Amendment Act 2010 (Cth), passed into law and created a framework for international arbitration reflecting that used throughout the world.

Commercial Arbitration Bill brings in national standards
McInnes Wilson Lawyers Pty Ltd January 30 2012
The Commercial Arbitration Bill (Qld), introduced on 15 November 2011, seeks to repeal the Commercial Arbitration Act 1990.

Banking

The PPSA register goes live today!
Spruson & Ferguson January 30 2012
The PPSA register goes live on the 30 January 2012.

The Personal Property Securities Act 2009 and property transactions
Barry.Nilsson. Lawyers January 27 2012
On 30 January 2012 the Personal Property Securities Act 2009 (Cth) (PPSA) will commence, creating a single, national electronic register for all personal property security interests.

Mortgagee’s power of sale – caveat update
Piper Alderman January 25 2012
In our previous Property and Projects Legal Update a mortgagee’s power of sale of an alleged – home occupation interest -, was considered following the Victorian Court of Appeal’s decision in MBF Investments Pty Ltd v Nolan (Nolan).

Price signalling prohibitions - draft regulations released for consultation
Kemp Strang January 20 2012
On 23 December 2011 the draft Competition and Consumer Amendment Regulations 2012 were released for consultation.

ANZ bank fee case
Minter Ellison January 16 2012
On 5 December 2011, Justice Gordon of the Federal Court delivered an important judgment on the enforceability of exception fees charged by the ANZ Bank.

Capital Markets

ASIC releases new regulatory guide regarding disclosure by infrastructure entities
DLA Piper January 27 2012
On 24 January 2012 the Australian Securities and Investments Commission (ASIC) released a new regulatory guide - Infrastructure entities: Improving disclosure for retail investors (RG 231).

New regulation of online advertising of financial products
Baker & McKenzie January 25 2012
On 30 August 2011, ASIC released a consultation paper and draft regulatory guide containing best practice guidance for advertising financial products, seeking to clearly outline advertisers' obligations and promote balanced decision-making.

Commercial Property

Queensland's new Strategic Cropping Land Act 2011 now in force
Clayton Utz January 31 2012
Queensland's new Strategic Cropping Land Act 2011 (Qld) commenced on 30 January 2012, with important implications for the development and resource industries.

Guidelines on the duty to report contamination – draft released for comment
Thomsons Lawyers January 25 2012
Following a comprehensive revision of the Guidelines on the Duty to Report Contamination under the Contaminated Land Management Act 1997 in June 2009 (Guidelines), the NSW Environment Protection Authority has released new draft Guidelines for public comment.

Strategic Cropping Land Act commences
Thomsons Lawyers January 24 2012
From 30 January 2012, Queensland Coal Seam Gas exploration and production projects determined to be on strategic cropping land (SCL) will face further regulatory restrictions, assessment costs and delays under the new Strategic Cropping Land Act 2011 (Qld) and executive officers will be personally liable for company breaches under SCL offence provisions.

Retail Leases Act 2003 (Vic) – retail leases in commercial buildings – levels 1-3 determination confirmed
Minter Ellison January 24 2012
The Ministerial Determination (the Determination) excluding certain retail premises in commercial buildings from the operation of the Retail Leases Act 2003 (Vic) (the Act) has been confirmed.

Company & Commercial

Drafting contracts: guidance on managing ambiguity
DLA Piper February 1 2012
In an ideal world, the wording of contracts would be clear, easy to read and unambiguous.

Directors’ duties: where do we go now?
Gilbert + Tobin January 25 2012
Expectations of directors and in particular non-executive directors are both demanding and inconsistent.

Directors' duties
Gilbert + Tobin January 25 2012
Charles Bogle, partner in Gilbert + Tobin’s Corporate Advisory group, calls for positive action to be taken to address when directors can rely on others and suggests a legislative approach is the way forward.

Bills to battle phoenix activity released for public comment
Minter Ellison January 23 2012
Exposure drafts of two Bills aimed at reducing phoenix activity were released for public comment on 20 December 2011.

Independent contractors
Baker & McKenzie January 19 2012
Engaging workers as contractors, rather than employees has always raised issues as to correct classification.

Competition

Inappropriate exercise of market power results in $2.5 million sanction
McInnes Wilson Lawyers Pty Ltd January 30 2012
In the decision of Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489, the Federal Court gave a stern reminder to businesses that opportunistic and anti-competitive behaviour will not to be tolerated.

Buyouts or mergers: is consent easier to obtain?
McInnes Wilson Lawyers Pty Ltd January 30 2012
Section 50 of the Competition and Consumer Act 2010 (Cth) (CCA) prohibits acquisitions such as buyouts and mergers that would result in substantial lessening of competition in a market for goods or services.

Construction

Security of payment: decisions that impacted the construction industry in 2011
McCullough Robertson January 23 2012
With the New Year having just begun, Partner Matt Bradbury looks back on some of the more significant cases handed down during the past 12 months in relation to the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) and the Building and Construction Industry Security of Payment Act 1999 (NSW) (BCISPA).

Copyrights

Federal Court win for Optus cloud-based PVR
Freehills February 1 2012
The Federal Court found Optus did not infringe the NRL, AFL or Telstra’s copyright through the operation of the Optus TV Now service.

Intermediary liability – global
Baker & McKenzie January 25 2012
They have also been a number of overseas developments that are of interest from an Australian perspective given the ongoing debate surrounding the issue.

Intermediary liability - Australia
Baker & McKenzie January 25 2012
The debate surrounding intermediary liability for copyright infringement in an online context continues, both in Australia and in many foreign jurisdictions.

Corporate Tax

Australian tax brief
Minter Ellison January 27 2012
The Australian government has now announced (16 December 2011) the third and final element of an Australian investment manager regime (IMR).

Employment & Labor

Looking forward – industrial relations in 2012
Freehills January 31 2012
2012 is shaping up to be a very big year in industrial relations.

Harmonisation of WHS
McInnes Wilson Lawyers Pty Ltd January 30 2012
The Work Health and Safety Act 2011 was assented to on 6 June 2011.

Fair Work Act review – background paper and submission timeline released
Freehills January 25 2012
The submission process for the Fair Work Act Review is now open.

Independent contractors
Baker & McKenzie January 19 2012
Engaging workers as contractors, rather than employees has always raised issues as to correct classification.

Are your OHS policies in good shape?
Baker & McKenzie January 17 2012
You should have one or more officers delegated as being responsible for managing OHS internally - including reporting on all OHS matters to the Board, maintaining a strong understanding of the enterprise risks of the company, and ensuring there are appropriate processes for receiving and addressing OHS issues.

Occupational health and safety
Baker & McKenzie January 17 2012
The Model Workplace Health and Safety (WHS) Act harmonise all work health and safety laws across state, territory and federal jurisdictions.

Is your discretionary bonus scheme really discretionary?
Baker & McKenzie January 17 2012
Just because a bonus scheme includes language of discretion doesn't mean that an employer has an unfettered right not to pay a bonus come bonus time.

Discretionary bonus schemes
Baker & McKenzie January 17 2012
In recent years, Australian Courts have been asked to consider the limits on an employer's discretion in making decisions about variable remuneration.

Energy & Natural Resources

Climate change and major projects – important Land and Environment Court decision
Freehills January 31 2012
On 24 November 2011, the NSW Land and Environment Court made its decision in Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221.

Aboriginal heritage and the right to veto exploration activities in South Australia
Blake Dawson January 30 2012
The recent decision of the Full Court of the Supreme Court of South Australia in Starkey & Ors v State of South Australia [2011] SASCFC 164 (Starkey) has highlighted the potential ability of traditional owners of Aboriginal heritage to effectively veto exploration and mining activities which would affect that Aboriginal heritage.

Draft NSW planning guidelines: wind farms – call for submissions
Thomsons Lawyers January 17 2012
On 23 December 2011, the NSW Government released ‘Draft NSW Planning Guidelines: Wind Farms’ for public comment.

Environment

New pollution reporting laws commence on 6 February 2012
Freehills January 31 2012
Important changes to NSW pollution control laws, involving a new duty to report incidents, will commence on 6 February 2012.

International round-up: climate change measures developing in 2012
Stikeman Elliott January 31 2012
The past year was an eventful period in the area of emissions trading and climate change regulation and policy development and 2012 is showing no signs of slowing down.

General Practice

The demise of spousal privilege
McInnes Wilson Lawyers Pty Ltd January 30 2012
The common law has previously recognised the right of spousal privilege that renders a witness immune from answering questions or giving evidence that may incriminate their spouse.

Healthcare

IHPA releases draft pricing framework for comment
Minter Ellison January 25 2012
The Independent Hospital Pricing Authority has released its Draft Pricing Framework for public comment.

NBN to further boost telehealth takeup
Minter Ellison January 25 2012
A new A$20.6 million telehealth program using the National Broadband Network will reportedly provide new and innovative in-home telehealth services to older Australians, people living with cancer and those requiring palliative care.

Australia reaches 1000 organ transplant recipients in 2011
Minter Ellison January 25 2012
More than 1000 Australian lives were saved or improved through organ transplants in 2011, the Parliamentary Secretary for Health and Ageing, Catherine King announced.

Insufficient monitoring by hospital staff resulting in mental health patient running into the path of an oncoming truck
Minter Ellison January 25 2012
Mark Connolly was 27 years old and had a history of mental illness, having been diagnosed with paranoid schizophrenia and having had multiple hospital admissions in the past.

Disciplinary action against a nurse after a physical altercation with an elderly patient
Minter Ellison January 25 2012
Mr Hughes-Fischer was a nurse with 21 years' experience and had been in practice for approximately 14 years when the events that led to the proceedings occurred.

Privacy Impact Assessment Report
Minter Ellison January 25 2012
The Commonwealth Department of Health and Ageing has received and responded to the recommendations of a Privacy Impact Assessment Report for Personally Controlled Electronic Health Records.

Queensland health review
Minter Ellison January 25 2012
A report completed by KPMG outlines the proposed structural reform to Queensland Health from July 2012.

A new ten-year plan for mental health
Minter Ellison January 25 2012
Australians have been invited to help carve out the future of the mental health system with the release of the draft Ten Year Roadmap for National Mental Health Reform for public consultation.

Health alert - 23 January 2012
DLA Piper January 23 2012
A coronial inquest into the death of Mark Connolly found he died from head injuries sustained as a pedestrian in a motor vehicle collision after absconding from the Sunshine Adult Acute Psychiatric Unit (SAAPU).

Information Technology

ACMA privacy guidelines
Baker & McKenzie January 25 2012
On 23 December 2011, the ACMA released its Privacy Guidelines for Broadcasters.

A privacy cause of action?
Baker & McKenzie January 25 2012
On 18 November 2011, submissions closed on the Federal Government's issues paper: A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy.

ACMA considers privacy implications of material sourced from Facebook
Baker & McKenzie January 25 2012
On 19 December 2011, the ACMA conducted an investigation into the use of Facebook content by a major free-to-air television provider during a local news broadcast.

Insolvency & Restructuring

Insurance & Reinsurance

"Other insurance" update
McInnes Wilson Lawyers Pty Ltd January 27 2012
Two recent Queensland cases have added clarification to the decision of the High Court in Zurich v Metals & Minerals (Speno Rail) (2009) 240 CLR 391 regarding the operation of Section 45(1) of the Insurance Contracts Act 1984 - “other insurance” provisions.

Unfair terms in insurance contracts
McInnes Wilson Lawyers Pty Ltd January 25 2012
The Treasury has released the Unfair Terms in Insurance Contracts Draft Regulation Impact Statement for Consultation (Impact Statement).

Leisure & Tourism

Interactive Gambling Review
Baker & McKenzie January 25 2012
Submissions to the Interactive Gambling Review have now closed.

Litigation

Future representations and offers to supply goods – make it clear and accurate
McInnes Wilson Lawyers Pty Ltd January 30 2012
In Australian Competition and Consumer Commission (ACCC) v Harvey Norman, retailing giant Harvey Norman (HN) came under fire for making misleading and deceptive statements to customers.

Trademark protection – urgent action required
McInnes Wilson Lawyers Pty Ltd January 30 2012
In Jackel International Ltd v Jackel Pty Ltd [2011] FCA 1516, protection of trade marks registered overseas but being referenced in Australia was considered.

Disciplinary action against a pharmacist who was convicted of indictable offences relating to stealing money from his employer
Minter Ellison January 25 2012
Mr Thomas was a junior pharmacist employed as a manager.

Admissibility of survey evidence: Pacific Brands penalised for ignoring court procedure
Davies Collison Cave January 24 2012
The Federal Court of Australia has dismissed an application by Pacific Brands Footwear to prevent Adidas from relying upon survey evidence in a trade mark infringement case, because Pacific Brands did not first raise its objections to the survey with Adidas, as required by the Court’s published procedures.

Independent contractors
Baker & McKenzie January 19 2012
Engaging workers as contractors, rather than employees has always raised issues as to correct classification.

Media & Entertainment

Australian regulator releases occasional paper on optimal conditions for self- and co- regulatory arrangements
Baker & McKenzie January 31 2012
The Australian Communications and Media Association (ACMA) has released an Occasional Paper discussing optimal conditions for effective self- and co-regulatory arrangements in the media and communications industries.

Convergence review
Baker & McKenzie January 25 2012
On 15 December 2011 the Convergence Review Committee released the Interim Report in its review of the policy and regulatory frameworks that apply to the converged media and communications industry in Australia.

ACMA privacy guidelines
Baker & McKenzie January 25 2012
On 23 December 2011, the ACMA released its Privacy Guidelines for Broadcasters.

Projects & Procurement

Public

The Queensland election and the impact of the caretaker conventions
Blake Dawson January 25 2012
Queensland Premier Anna Bligh has announced that a State election will be held on 24 March 2012 and has named 19 February as the date the Queensland Parliament will be dissolved.

Telecommunications

Mobile premium services updates
Baker & McKenzie January 25 2012
A revised draft of the Mobile Premium Services Code was published in December 2011.

Trademarks

Is “nuckin futs” too scandalous to be a registered trade mark?
Davies Collison Cave January 25 2012
The Australian Trade Marks Office has determined that an application for the trade mark "Nuckin Futs" is registrable on the basis that it is subject to an endorsement stating that the trade mark will not be marketed to children.

Bahrain

Company & Commercial

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Energy & Natural Resources

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Environment

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Trade & Customs

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Belgium

Corporate Finance/M&A

New reporting and documentation requirements for mergers and divisions in Belgium
NautaDutilh January 31 2012
On 8 January 2012, an act implementing Directive 2009/109/EC was adopted by the Belgian Parliament.

Employment & Labor

International HR briefing: Belgium
Eversheds January 23 2012
In July 2011, the Belgian Constitutional Court declared the current distinction between blue-collar and white-collar employees to be discriminatory.

Insolvency & Restructuring

Petroplus group enters insolvency proceedings
Reed Smith LLP January 31 2012
Petroplus, the largest independent refiner and wholesaler of petroleum products in Europe entered into various insolvency proceedings in Switzerland, England and Wales, France, Germany and Belgium on 24-27 January 2012 after the group failed to reach agreement with its creditors to extend the deadline of its loan repayments.

Benin

Public

Corruption digest
Dorsey & Whitney LLP January 19 2012
Three officials of the Independent National Electoral Commission (INEC) allegedly accepted a N2 million bribe from Mr Ted Iseghoghi, counsel to INEC at the Edo State Election Petition Tribunal, to falsify documents used during the 9 April National Assembly Election in Ovia Federal Constituency.

White Collar Crime

Brazil

Corporate Immigration

U.S. visa wait times in Brazil and China decrease
Duane Morris LLP January 25 2012
In the last 3 months visa appointment wait times in Brazil have been reduced from 50 days to 15 days in Rio de Janeiro and to 6 days in Brasilia.

British Virgin Islands

Trademarks

British Virgin Islands begins public consultation on draft Trade Marks Bill
Thornton Smith January 25 2012
THORNTON SMITH welcomes the recent release by the Financial Services Commission of the exposure draft of the Trade Marks Bill (the “Draft Bill”), published on 23 January 2012 as part of the mandate set by the Premier and Minister of Finance during his Budget Address delivered on 17 January 2012.

Canada

Arbitration

U.S. Supreme Court rules on enforceability of arbitration clauses
McCarthy Tétrault LLP January 31 2012
The United States Supreme Court has revisited the issue of whether a statute can override an arbitration clause in a consumer agreement.

Bill 168 changes the assessment of workplace violence
Miller Thomson LLP January 30 2012
In a recent arbitration decision upholding a termination, an arbitrator held that Bill 168, which amended the Occupational Health and Safety Act, revises the assessment of workplace violence.

Limits to supervision time is a “hard” 80-minute cap, for all teachers
Miller Thomson LLP January 30 2012
In a recent arbitral decision, the issue was whether a teacher who has additional responsibilities as a "Teacher in Charge" or "Teacher Administrative Assistant," can be asked to provide more than the 80 minutes per five-day instructional cycle of supervision time allowed under the collective agreement.

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board)
Harper Grey LLP January 26 2012
The appeal by a union from a decision overturning a Chambers judge’s decision to set aside an arbitrator’s decision due to insufficient reasons was dismissed where the Court found that the arbitrator’s decision was reasonable and the reasons allowed a reviewing Court to understand why the tribunal had made its decision and permitted it to determine whether the conclusion was within the range of acceptable outcomes.

Random alcohol testing case approves use of breathalyser on employees
Gowling Lafleur Henderson LLP January 24 2012
In a recent, important decision, Irving Pulp and Paper Limited has been lawfully permitted to impose random alcohol testing by breathalyser on employees.

Banking

Perfection and priority: dealing with serial numbered goods
Osler, Hoskin & Harcourt LLP January 30 2012
Lenders should be aware that when taking security in certain goods with serial numbers in Canada, the rules regarding registration of financing statements vary across provincial jurisdictions; a detail that, if overlooked, could impact the priority of the lender’s security interest.

New tort of invasion of privacy
Miller Thomson LLP January 30 2012
On January 20, 2012 the Ontario Court of Appeal released a unanimous decision creating the tort of invasion of privacy in Ontario.

Common law privacy rights: Ontario Court of Appeal recognizes invasion of privacy tort
Borden Ladner Gervais LLP January 27 2012
The Ontario Court of Appeal in the case of Jones v. Tsige, 2012 ONCA 32, has explicitly recognized a common law tort for invasion of a person`s right to privacy, specifically the right to seclusion of one’s private affairs from the public eye – a legal issue that remains uncertain in some parts of Canada.

Ontario Court of Appeal recognizes tort arising from invasion of privacy
Stikeman Elliott January 26 2012
In Jones v. Tsige, the Ontario Court of Appeal confirmed the existence of the tort of “intrusion upon seclusion” based on invasion of an individual’s personal privacy.

Restraining notice on bank branch in New York does not restrain accounts located in Canada: court confirms viability of “separate entity rule”
Wilk Auslander LLP January 25 2012
In a decision dated January 11, 2012, a New York court applied the “separate entity rule” to dismiss a judgment creditor’s special proceeding against a garnishee bank, confirming that the rule remains alive and well in New York.

Recent changes to prepayment rights under the Interest Act (Canada)
McCarthy Tétrault LLP January 25 2012
The Government of Canada recently enacted new regulations under the Interest Act (Canada) which have the effect of expanding the class of "prescribed entities" for the purposes of section 10(2)(b) of the Act.

A new price tag on privacy? Ontario Court of Appeal recognizes tort of "intrusion upon seclusion"
Blaney McMurtry LLP January 24 2012
Last week Ontario’s Court of Appeal recognized for the first time the right of an individual to sue for breach of privacy.

Charging a higher rate of interest on arrears? You can’t do that
McLennan Ross LLP January 7 2012
Section 8 of Canada’s Interest Act prohibits a lender from charging a higher rate of interest on arrears of principal secured by a real property mortgage than the interest rate payable on principal money not in arrears.

Capital Markets

IIROC provides guidance on seeking UMIR exemptions
Stikeman Elliott January 30 2012
On January 27, the Investment Industry Regulatory Organization of Canada (IIROC) issued guidance with respect to the process to be followed by dealers, users and subscribers seeking to obtain an interpretation of, or exemption from, a provision of UMIR.

Why the Supreme Court said no
Miller Thomson LLP January 27 2012
On December 23, 2011, the Supreme Court of Canada (the “Supreme Court”) issued its decision to reject the federal government’s attempt to create a central body to regulate securities across Canada.

Executive compensation disclosure and analysis: amendments to Form 51-102F6 Statement of Executive Compensation
Miller Thomson LLP January 27 2012
Issuers should be aware that, beginning October 31, 2011, publicly traded companies will be required to provide enhanced disclosure related to executive compensation, as well as any risks associated with the company’s compensation practices.

CSA adopt proposals to regulate credit rating organizations
Stikeman Elliott January 27 2012
Earlier today, the Canadian Securities Administrators announced the adoption of a new national instrument, related policies and consequential amendments to impose regulatory oversight for designated credit rating agencies and organizations.

CSA staff consultation Note 45–401
Miller Thomson LLP January 27 2012
On November 10, 2011, staff of the Canadian Securities Administrators (“CSA”) published CSA Staff Consultation Note 45-401 (“45-401”).

CSA expresses concerns and a warning for issuers using mass media to advertise
Miller Thomson LLP January 27 2012
Issuers who advertise by way of television, radio, internet, social media and/or print will need to be particularly vigilant that such advertising is in compliance with applicable continuous disclosure requirements and is not misleading to investors.

New developments in disclosure rules for mining companies
Goodmans LLP January 26 2012
Effective as of the end of this month the U.S. Securities and Exchange Commission’s new disclosure requirements relating to mine safety will take effect.

Significant changes proposed to the rules governing prospectus offerings in Canada
Goodmans LLP January 26 2012
The rules concerning the scope of permissible marketing activities for prospectus offerings in Canada may be significantly changed under proposals made by the Canadian Securities Administrators (the “CSA”).

The use of side letters to limited partnership agreements
Gowling Lafleur Henderson LLP January 24 2012
A number of private equity funds and hedge funds are structured as limited partnerships that are governed by the terms of a limited partnership agreement (an “LPA”).

McLean v. British Columbia (Securities Commission)
Harper Grey LLP December 22 2011
The Court of Appeal remitted the matter back to the BC Securities Commission after it failed to provide an explanation for why its decision to limit the appellant’s ability to trade securities was in the best interests of the public.

Commercial Property

How to remove the administrator of a condominium
Heenan Blaikie LLP January 30 2012
In part one and part two of this blog topic, we discussed the circumstances in which a court will appoint an administrator to take over the management of a dysfunctional condominium corporation.

Property tax relief available to registered charities
Miller Thomson LLP January 30 2012
Registered charities in Ontario should take note of a time-limited opportunity to obtain a rebate on property taxes paid in the previous year.

REDMA update - early completion of condominium does not allow rescission
Lawson Lundell LLP January 30 2012
Last summer, I blogged on the ever expanding body of jurisprudence arising from purchasers of “pre-built” condominiums attempting to use their rescission rights under the Real Estate Development Marketing Act (British Columbia) (“REDMA”) to avoid completing their condominium purchases.

Condo loans for energy efficiency improvements
Heenan Blaikie LLP January 24 2012
Condominium Corporations considering doing common element improvements to reduce energy consumption costs, should be interested in a new mortgage loan insurance product just launched by CMHC.

Supreme Court affirms broad municipal discretion to set tax rates
Davis LLP January 23 2012
The story of Catalyst Paper over the last few years has not been positive.

The future of toxic torts in Canada: the impact of Smith v. Inco Limited
Davis LLP January 23 2012
The recent Ontario Court of Appeal decision in Smith v. Inco Limited has established new, narrower standards for the environmental torts of private nuisance and strict liability (known as the Rylands v. Fletcher rule).

Company & Commercial

Board minutes: be alert to process issues
Fraser Milner Casgrain LLP January 30 2012
This is the last post in my series dealing with suggestions for the corporate secretary when drafting board minutes.

Construction

Bank of Montreal v. Peri Formwork Systems Inc.
Borden Ladner Gervais LLP January 20 2012
In the recently released Judgment in Bank of Montreal v. Peri Formwork Systems Inc, the British Columbia Court of Appeal was called upon to decide whether a Monitor, under the Companies’ Creditors Arrangement Act (“CCAA”), or a Receiver, under the Builders Lien Act, could borrow monies to complete a development project in priority to claims of builder’s liens registered against the project.

When owners are “owners”: a clarification of lien liability
McLennan Ross LLP January 7 2012
Over the last year, the Alberta Court of Queen’s Bench has made decisions that have suggested the existence of a gap in the lien liability of owners in Alberta who have work performed on new developments that would usually be subject to lien claims.

Copyrights

Do you really own the copyright in that advertisement or marketing material?
Borden Ladner Gervais LLP January 30 2012
In the September 2011 decision of Century 21 Canada Limited Partnership v. Rogers Communications Inc., the British Columbia Supreme Court held that copyright in a work can only be assigned by an agreement that is signed after the work is created.

Canadian copyright and campaigns - moral rights edition
Heenan Blaikie LLP January 28 2012
Canadian entertainment lawyers are forced to look on in wonderment (and envy?) at the plethora of entertainment law-related legal disputes which arise in the United States.

Corporate Finance/M&A

New 2012 Investment Canada Act review threshold
McCarthy Tétrault LLP January 27 2012
Industry Canada has announced that the Investment Canada Act (Act) threshold for 2012 that applies to most direct acquisitions of Canadian businesses by non-Canadian investors from World Trade Organization (WTO) member countries is $330 million (an increase from last year’s $312 million threshold).

U.S. Steel and Canadian government reach settlement in Investment Canada Act enforcement proceedings
McCarthy Tétrault LLP January 27 2012
Last month the Canadian Minister of Industry, the Honourable Christian Paradis, announced that "U.S. Steel has given significant new and enhanced undertakings under the Investment Canada Act (Act) that provide the basis for the government to settle its lawsuit against U.S. Steel."

Positive outlook for Canadian power M&A
Stikeman Elliott January 26 2012
The outlook for M&A activity in the Canadian power sector is positive, according to participants in a panel discussion at the Canadian Power Finance Conference on January 25th.

Representations and warranties insurance in M&A transactions
Gowling Lafleur Henderson LLP January 24 2012
Post-closing financial support of representations and warranties can be a point of contention between buyer and seller in any M&A transaction.

Corporate Immigration

Citizenship and Immigration Canada announces excessive demand cost threshold for 2012
Blaney McMurtry LLP January 25 2012
On December 30, 2011, Citizenship and Immigration Canada (“CIC”) issued Operational Bulletin 373. Operational Bulletin 373 provides additional information relating to the Excessive Demand Cost Threshold (the “Demand Threshold”) for 2012, which became effective on December 1, 2011.

Citizenship and Immigration Canada now allows recaptured time for intracompany transferees
Blaney McMurtry LLP January 25 2012
On September 19, 2011, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 346, which authorized the recapture of unused time that would otherwise count against the time limits that are normally imposed on foreign nationals working in Canada as intracompany transferees.

Corporate Tax

Personal services businesses: game over
Boughton Law Corporation February 1 2012
According to draft legislative proposals, corporations carrying on a personal services business will be subject to significantly higher tax rates for tax years beginning after October 31, 2011.

Important new additions to the Canada Revenue Agency (“CRA”) Charities Directorate website
Miller Thomson LLP January 30 2012
The CRA’s Charities Directorate recently added two new and useful features to its website.

Clergy residence deduction – when can youth pastors qualify?
Miller Thomson LLP January 30 2012
In a technical interpretation released by the CRA on June 27, 2011, the CRA was asked to consider whether a pastor in charge of a children’s ministry qualified for the clergy residence deduction.

Panel of tax experts debates impact of copthorne decision at Canadian Tax Foundation seminar
Fraser Milner Casgrain LLP January 27 2012
On Thursday, January 26, 2012, in the ballroom of the historic Fairmont Royal York Hotel in downtown Toronto, the Canadian Tax Foundation hosted a lively panel discussion on the recent Supreme Court of Canada (“SCC”) decision in Copthorne Holdings Ltd. v. The Queen.

The Supreme Court of Canada speaks on GAAR
Gowling Lafleur Henderson LLP January 25 2012
On December 16th last the Supreme Court of Canada (“SCC”) released its long anticipated decision in the case of Copthorne Holdings Ltd. v. The Queen (“Copthorne”).

Certification granted in charitable donation tax "scheme" class action
Stikeman Elliott January 24 2012
If it walks like a duck, quacks like a duck, looks like a duck, it’s probably a duck.

Supreme Court affirms broad municipal discretion to set tax rates
Davis LLP January 23 2012
The story of Catalyst Paper over the last few years has not been positive.

Tax rollovers and the issuance of unauthorized shares
Lawson Lundell LLP January 16 2012
Posted in CRA Interpretations / Rulings Broadly speaking, subsections 85(1) and 51(1) of the Income Tax Act provide for a tax-deferred rollover on the transfer of certain property in exchange for consideration that, in the case of subsection 85(1) includes or, in the case of subsection 51(1) is comprised of, shares in the capital stock of the corporation receiving the property.

Derivatives

Final CPSS/IOSCO report on OTC derivatives data reporting released
Stikeman Elliott January 26 2012
Last week, the Committee on Payment and Settlement Systems and the Technical Committee of the International Organization of Securities Commissions published a final report regarding OTC derivatives data reporting and aggregation requirements.

E-commerce

New Google privacy policy and user data merge
Stikeman Elliott January 30 2012
Effective March 1, 2012, Google will put in place a unified privacy policy that will replace over 60 different privacy policies across Google and cover multiple products and features.

Update on anti-spam legislation
Borden Ladner Gervais LLP January 30 2012
Revised drafts of the regulations under Canada’s new anti-spam and online fraud legislation are expected to be published in the next few months.

French character Internationalized Domain Names
Borden Ladner Gervais LLP January 30 2012
The Canadian Internet Registration Authority (CIRA) has just released the feedback it has received on, and the analysis of the results of, their consultation on Internationalized Domain Names (IDN).

Employee Benefits & Pensions

Supreme Court of Canada sets date to hear Indalex appeal
Blake Cassels & Graydon LLP January 30 2012
On Thursday, December 1, 2011, a three-judge panel of the Supreme Court of Canada granted leave to appeal from the decision of the Court of Appeal for Ontario in Re Indalex.

Proposed pooled registered pension plans: potential market changer?
Fasken Martineau DuMoulin LLP January 30 2012
The federal government recently published draft legislation to create pooled registered pension plans ("PRPP").

Checkmate: Third Circuit holds automatic stay bars participation in U.K. pension proceedings
Bracewell & Giuliani LLP January 19 2012
A recent decision by the Third Circuit in the Nortel Group bankruptcy reinforces the worldwide reach of the automatic stay and the narrow scope of the police power exception under section 362(b)(4) of the Bankruptcy Code.

Employment & Labor

Gossip, personality conflicts were not harassment under Ontario OHSA: OLRB
Fraser Milner Casgrain LLP January 31 2012
The Ontario Labour Relations Board has dismissed a reprisal complaint under the Occupational Health and Safety Act because the employee’s allegations – which included “gossip” – did not rise to the level of “harassment” as defined in the OHSA.

Disability-management specialist facing human rights complaint; Tribunal grants access to health files
Fraser Milner Casgrain LLP January 30 2012
A disability-management specialist working for the Toronto Transit Commission is facing a human rights complaint.

Stay of OHS charges in 2009 Alberta stage collapse
Fraser Milner Casgrain LLP January 27 2012
On August 1, 2009, just as Hollywood actor, Kevin Costner, was getting ready to take the main stage with his band at the Big Valley Jamboree, plow winds in excess of 100 kilometres per hour contributed to its collapse.

Demotion inappropriate response to poor performance
Fasken Martineau DuMoulin LLP January 25 2012
"Cause" for termination is a difficult standard to meet in Canada.

Ontario WSIB delays mandatory registration in the construction industry
Gowling Lafleur Henderson LLP January 24 2012
Ontario’s Workplace Safety and Insurance Board has announced that mandatory registration for independent operators, sole proprietors, some executive offi cers and some partners in a partnership who do not have employees but work in the construction industry will take effect as of January 1, 2013.

2011 notice of proposal to adopt new or revised occupational exposure limits or listings for hazardous chemical substances
Gowling Lafleur Henderson LLP January 24 2012
The Ontario Ministry of Labour is seeking input on the proposed adoption of new or revised occupational exposure limits or listings for nine hazardous chemical substances.

Racking and storage hazards blitz at the Ministry of Labour
Gowling Lafleur Henderson LLP January 24 2012
The Ministry of Labour decided to focus its inspections on racking and storage hazards at industrial workplaces across Ontario.

Integrated Accessibility Standard - The Next Step in Accessibility Compliance
Gowling Lafleur Henderson LLP January 24 2012
With a the deadline for compliance with the Accessibility Standard for Customer Service Regulation to the Accessibility for Ontarians with Disability Act (AODA) on January 1, 2012, now past, organizations across Ontario should now turn their minds towards compliance with the second phase of the AODA accessibility regime – the Integrated Accessibility Standard.

National standard for psychological health and safety in the Canadian workplace released
Heenan Blaikie LLP January 24 2012
A new and surprisingly complex Canadian Standards Association Standard may be arriving at and impacting your workplace soon.

Avalanche safety in the workplace
Gowling Lafleur Henderson LLP January 24 2012
Many workplaces in British Columbia are situated in terrain where snow avalanches may occur, such as forestry operations, ski hills, ecotourism, transportation and utilities.

Due diligence requires all workers to be trained in safe work procedures
Gowling Lafleur Henderson LLP January 24 2012
In November 2011, BFI Canada Inc. was convicted of charges under Ontario’s Occupational Health and Safety Act following an injury to a temporary worker. Information

“Due diligence” may require insubordination or a breach of confidentiality, says court
Gowling Lafleur Henderson LLP January 24 2012
The Nova Scotia Provincial Court has delivered a troubling judgment for occupational health and safety professionals.

New OHSA regulation proposed to expedite resolution of reprisal allegations
Gowling Lafleur Henderson LLP January 24 2012
On December 16, 2011, the Ministry of Labour released a proposal to create an additional Regulation under the Occupational Health and Safety Act (OHSA) to expedite the resolution of reprisal allegations under section 50 of the OHSA.

Federal government abolishes mandatory retirement
Boughton Law Corporation January 12 2012
On December 15, 2011 the federal government gave Royal Assent to the omnibus Bill C-13.

Energy & Natural Resources

Clean energy investment up in 2011
Lawson Lundell LLP January 30 2012
On January 12, 2012, Bloomberg New Energy Finance released data on clean energy investment, which showed a new high in clean energy investment at US$260 billion in 2011.

WTO dispute panelists
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 29 2012
The European Union and Canada agreed January 20 on the appointment of three World Trade Organization dispute panelists who will rule on the EU’s complaint against the provisions in the Canadian province of Ontario’s green energy program which the agency claims unfairly discriminates against foreign firms.

Environment

RGGI to expire unsold allowances
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 29 2012
On January 17, in announcing its March 14 auction, seven of the Regional Greenhouse Gas Initiative’s nine states said they will retire 87 million carbon dioxide emissions allowances that went unsold during the past six auctions.

Natural Resources Minister Oliver promises to streamline approvals
Davis LLP January 25 2012
Federal Natural Resources Joe Oliver, in a speech in Calgary on Wednesday, committed to reforming and streamlining the federal environmental approvals process in the coming months.

General Practice

Khela v. Mission Institution
Harper Grey LLP January 22 2012
The appellant warden of Mission Institution was unsuccessful in her appeal of a chambers decision which ordered that the respondent inmate be returned from Kent Institution to Mission Institution.

TMJ injuries and the soft tissue injury cap in Alberta
McLennan Ross LLP January 16 2012
Plaintiff and Defence counsel alike were eagerly awaiting Justice Shelley’s decision in Sparrowhawk v. Zapoltinsky [2012 ABQB 34].

Schaeffer v. Ontario (Provincial Police)
Harper Grey LLP December 22 2011
The court of appeal set aside the application judge’s ruling and held that police officers involved in Special Investigations Unit (the "SIU") investigations were not allowed to have a lawyer vet or assist in the preparation of their field notes.

Healthcare

Ajao v. College of Nurses of Ontario
Harper Grey LLP January 26 2012
Although the Inquiries Complaints and Reports Committee of the College of Nurses of Ontario (the “ICRC”) is a screening committee and not a quasi-judicial one, it still owed a disclosure obligation to the applicant member of the College, a registered nurse, which required it to provide the applicant with notice of the Registrar’s report of its investigation, notice of the substance of the allegations against her and an opportunity to make submissions in respect of the allegations.

Rosenhek v. Ontario
Harper Grey LLP January 26 2012
A physician’s application for judicial review of the decision of the Ministry of Health and Long Term Care “and/or” the general manager of Ontario Health Insurance Plan (OHIP) denying him payment for approximately $250,000.00 for medical services billed in 2002, 2003, and 2004 was set aside on the basis of delay.

Information Technology

A number says a thousand words: Data Privacy Day 2012
Stikeman Elliott January 27 2012
Ontario’s Information and Privacy Commissioner, Dr. Ann Cavoukian, recently issued a press release warning consumers that new technology has the potential to build individually-detailed profiles based on IP addresses, social insurance numbers and even license plates.

Ten tech law resolutions for 2012
McCarthy Tétrault LLP January 26 2012
January is a great time to make some resolutions for the coming year.

Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association
Harper Grey LLP January 26 2012
The appeal by the Alberta (Information and Privacy Commissioner) of the decision to quash an adjudicator’s ruling that the Commissioner had lost jurisdiction due to the failure to extend the period for the completion of an inquiry was allowed where the Court found that the implied decision of the Commissioner to extend time, which was adopted by the delegated adjudicator, was reasonable.

Liability for breach of privacy claims in BC
Alexander Holburn Beaudin & Lang January 24 2012
The recent decision from the Ontario Court of Appeal in Jones v Tsige has generated much attention from the media and legal observers heralding a new basis for recovery of damages for invasion of privacy.

Insolvency & Restructuring

Insurance & Reinsurance

Cutting a submarine cable can cost you, your vessel and your insurance protection
Squire Sanders January 27 2012
The decision of the Canadian court in Société Telus Communications v. Peracomo Inc. breaks new ground in cases involving faults to submarine cables and in the general international maritime law.

Product recalls - are you covered?
Gowling Lafleur Henderson LLP January 27 2012
A recent decision by the Supreme Court of British Columbia, Premium Brands Operating Ltd. Partnership v. Lloyd’s Underwriters, serves as a good reminder to manufacturers to evaluate their current insurance coverage to ensure they are adequately protected in the event of a product recall.

Vicarious liability in the context of leased and rented automobiles
Blaney McMurtry LLP January 19 2012
On March 1, 2006 the amendments to the Insurance Act (“IA”), the Highway Traffic Act (“HTA”) and the Compulsory Automobile Insurance Act (“CAIA”), which reformed the rules for vicarious liability with respect to leased and rented automobiles, came into force.

Intellectual Property

Mickey Mouse heads overseas
Heenan Blaikie LLP January 27 2012
After it was announced that Shanghai will soon have its own Disneyland theme park, and just when you thought Mickey Mouse could not get any bigger, he announces that Disney is planning to open 25 to 40 stores across major cities in China.

Litigation

Fully appreciating the new Ontario summary judgment regime
Fraser Milner Casgrain LLP January 31 2012
The Ontario Court of Appeal has handed down an important decision in Combined Air Mechanical Services Inc v Flesch in which it clarified the scope and availability of the summary judgment procedure in Ontario.

Key developments in Canadian patent law in 2011
Gowling Lafleur Henderson LLP January 31 2012
The following article summarizes several developments in Canadian patent law, including a brief summary of amendments to the Patent Rules.

Can you terminate your sponsorship without notice if the title sponsor withdraws as a sponsor?
Borden Ladner Gervais LLP January 30 2012
In the recent case of Canadian Soccer Assn. v. Hyundai Auto Canada Corp., the Ontario Court of Appeal found that the continued involvement of a title sponsor was not a material term to a sponsorship agreement where there was no warranty clause in the agreement requiring the title sponsor to remain a sponsor.

Can a contractor use its own mistakes to withdraw its bid?
McCarthy Tétrault LLP January 29 2012
A contractors’ worst nightmare is making a mistake in a tender and being stuck with a low bid.

Court of Appeal rules on head injury liability and sports helmets
Gowling Lafleur Henderson LLP January 27 2012
This article is a follow up to our report in the March 2011 issue of Gowlings’ Product Liability Update regarding the decision in More v. Bauer Nike Hockey Inc.

Demotion inappropriate response to poor performance
Fasken Martineau DuMoulin LLP January 25 2012
"Cause" for termination is a difficult standard to meet in Canada.

Ontario court rejects novel claims bar proposal in class action minutes of settlement
Stikeman Elliott January 24 2012
In Durling v. Sunrise Propane Energy Group Inc. released in mid-December Justice Horkins of the Ontario Superior Court of Justice rejected a claims bar which had been included in Minutes of Settlement proposed by Class Counsel and agreed to by the Defendants in a class proceeding which arose out of explosions that occurred in 2008 at a propane facility in Toronto

Certification granted in charitable donation tax "scheme" class action
Stikeman Elliott January 24 2012
If it walks like a duck, quacks like a duck, looks like a duck, it’s probably a duck.

Warman v. Wilkins-Fournier
Gowling Lafleur Henderson LLP January 23 2012
Motion brought by the plaintiff requesting an Order compelling the defendants to produce relevant documents in their possession and control relating to the identities of three John Doe defendants.

Supreme Court affirms broad municipal discretion to set tax rates
Davis LLP January 23 2012
The story of Catalyst Paper over the last few years has not been positive.

Truckair v. Canada
Harper Grey LLP December 22 2011
The applicant, Truckair, successfully applied for judicial review of a Provincial Court judge’s decision not to recuse himself in a hearing about his jurisdiction to decide a Charter issue.

Media & Entertainment

National arts service organizations
Miller Thomson LLP January 30 2012
In the November issue of this Newsletter, we reported on the draft Guidance issued by the Charities Directorate concerning the registration of arts organizations.

Advertising of wireless phone, smart phone and data services in Ontario
Borden Ladner Gervais LLP January 30 2012
Bill 5, An Act to provide transparency and protection for consumers of wireless telephone services, smart phone services and data services in Ontario, is a private member’s bill which has received Second Reading and been referred to the Standing Committee on General Government.

Chris Castle on record producer agreements
Heenan Blaikie LLP January 24 2012
Chris Castle has collected all of the installments from his ongoing series of posts More Questions for Artists: Record Producer Agreements which covers, in fascinating detail (but readable prose!) just about everything you could possibly want to know about record producer agreements.

Non-profit Organizations

Canada Not-For-Profit Corporations Act – planning continuance
Miller Thomson LLP January 30 2012
As we have reported previously in this Newsletter, corporations that are currently incorporated federally under the Canada Corporations Act (CCA) must continue under the Canada Not-For-Profit Corporations Act (CNCA) by October 17, 2014.

Certification granted in charitable donation tax "scheme" class action
Stikeman Elliott January 24 2012
If it walks like a duck, quacks like a duck, looks like a duck, it’s probably a duck.

Patents

Speed bump on the Patent Prosecution Highways
Blake Cassels & Graydon LLP January 31 2012
Patent Prosecution Highways (PPH) have been established pursuant to bilateral agreements between patent offices of different countries.

Product Liability

Consultation on wine labelling
Borden Ladner Gervais LLP January 30 2012
In an effort to harmonize wine labelling rules with other wine producing trading partners and facilitate international trade in wine, amendments are being proposed to the Food and Drug Regulations, the Consumer Packaging and Labelling Regulations, and a new regulation under the Canada Agricultural Products Act.

Fundamentals of Canadian product liability: remedies
Gowling Lafleur Henderson LLP January 27 2012
The statutory, common law and equitable remedies which can be assessed against defendants in product liability matters include monetary damages, disgorgement of revenue and/or profits, rescission of the contract of purchase and sale, monetary fines, injunctions, criminal sentencing, punitive damages and interest and costs of a proceeding.

Professional Negligence

Projects & Procurement

Public

Shipping & Transport

Telecommunications

Trade & Customs

How to plan a customs compliance program
Miller Thomson LLP January 24 2012
The range and type of businesses engaged in the importation and exportation of goods to and from Canada is almost infinite.

China

Arbitration

Provisions for the Negotiation and Mediation of Enterprise Labor Disputes
Orrick Herrington & Sutcliffe LLP January 24 2012
On November 30, 2011, the Ministry of Human Resources and Social Security issued the Provisions for the Negotiation and Mediation of Enterprise Labor Disputes, which came into effect on January 1, 2012.

Banking

Mainland and Hong Kong sign CEPA Supplementary Provisions VIII
Orrick Herrington & Sutcliffe LLP January 24 2012
On December 13, 2011, the Supplementary Provisions VIII to the Mainland and Hong Kong Closer Economic Partnership Arrangement was signed in Hong Kong.

Capital Markets

“Going dark” – the simple path to exiting the U.S. public company reporting system – delisting and deregistration under the U.S. Securities Exchange Act of 1934
Dorsey & Whitney LLP January 30 2012
There is a significant opportunity for some China-based companies with calendar year fiscal years that are unhappy with their U.S. stock exchange listings and the burdens of being a publicly reporting company in the United States to promptly delist and deregister their shares under the U.S. Securities Exchange Act of 1934.

CSRC launches RQFII trial scheme
Orrick Herrington & Sutcliffe LLP January 24 2012
On December 16, 2011, the China Securities Regulatory Commission, SAFE and the People's Bank of China jointly issued the Trial Measures on Domestic Securities Investment by RMB Qualified Foreign Institutional Investors of Fund Management Companies and Securities Companies.

Commercial Property

Chinese property: bubble trouble?
Stephenson Harwood January 25 2012
In some ways, you've got to admire their cheek.

Company & Commercial

Supermarket sweep
Stephenson Harwood January 25 2012
When Tesco said sayonara to Japan last September, after an expensive eight-year struggle to crack the world's third largest grocery market, it was viewed as a rare failure by the UK supermarket: indicative of the Japanese market's still-terrifying ability to act as a graveyard for foreign assailants.

China issues new foreign investment catalogue
Orrick Herrington & Sutcliffe LLP January 24 2012
On December 24, 2011, the National Development and Reform Commission and the Ministry of Commerce jointly issued the Foreign Investment Industrial Guidance Catalogue (Amended 2011).

Copyrights

Free download of licensed digital songs on Baidu – music to the ears of record labels
Hogan Lovells January 27 2012
Baidu, China's biggest and most popular search engine, has for many years been accused of infringing copyrights of artists and record labels.

Corporate Finance/M&A

China's new Foreign Investment Catalogue comes into effect
Morrison & Foerster LLP January 30 2012
Today marks the coming into effect of the newly amended Catalogue for Guidance of Foreign Investment in Industry, issued December 24, 2011 by the National Development and Reform Commission and the Ministry of Commerce.

China legal focus
CMS, China January 30 2012
On 24 December 2011, the National Development and Reform Commission ("NDRC") and the Ministry of Commerce ("MOFCOM") jointly issued a new Guideline Catalogue of Industries for Foreign Investment (Amended 2011) ("2011 Catalogue").

China improves administration of foreign invested holding companies
Orrick Herrington & Sutcliffe LLP January 24 2012
On December 8, 2011, the Ministry of Commerce and the State Administration of Foreign Exchange jointly issued the Notice on Further Improving the Relevant Administration of Foreign Invested Holding Companies.

China VIE structure for foreign investment under attack from multiple directions: will it emerge (relatively) unscathed or is its very survival threatened?
Hogan Lovells January 20 2012
Historically the VIE structure and its predecessors essentially came about as a "workaround" to allow indirect non-equity based "investment" in industries in China in which foreign investment was restricted or prohibited, e.g., telecommunications services and media.

Corporate Immigration

Corporate Tax

China tax regulation update
CMS, China January 31 2012
Starting from 1 January 2012, certain services provided by taxpayers in Shanghai or provided by foreign enterprises to tax payers in Shanghai are subject to Value Added Tax and not the previous Business Tax.

China undecided on imposition of carbon tax
WongPartnership January 31 2012
In contrast with earlier media reports which stated that China will introduce a carbon tax before 2015, a senior Chinese official stated in January 2012 that China remains undecided as to whether it will impose a tax on carbon emissions.

Compliance with Transfer Pricing Rules - a new way to bridge differences between the IRS and Customs
Frost Brown Todd LLC January 27 2012
Multinational companies face compliance challenges and spend substantial time and money on transfer pricing issues.

Employee Benefits & Pensions

Update on enforcement of social insurance contributions requirements for foreign employees in China
Mayer Brown LLP January 30 2012
Generally In December 2011, the PRC Ministry of Human Resources and Social Security ("MOHRSS") issued a circular ("Circular") urging local HRSS bureaux to enforce the Interim Measures on Participation in PRC Social Insurance of Foreigners Employed in China (the "Interim Measures").

Employment & Labor

Privacy issues under PRC employment law
Mayer Brown LLP January 19 2012
Currently there is no dedicated law or regulation for privacy protection of employees in Mainland China.

Energy & Natural Resources

Shale of the century
Stephenson Harwood January 25 2012
The US energy expert Daniel Yergin has always had a nose for timing.

Environment

Feeling sheepish
Stephenson Harwood January 25 2012
China's sudden wealth has produced bubbles in all sorts of commodities: from garlic bulbs to Tibetan Mastiff puppies.

Franchising

MOFCOM amends measures for commercial franchising filing
Orrick Herrington & Sutcliffe LLP January 24 2012
On December 12, 2011, the Ministry of Commerce issued the Measures for the Administration of Commercial Franchising Filings, which will take effect on February 1, 2012 and supersede the Measures for the Administration of Commercial Franchising Filings issued in 2007.

Information Technology

Privacy issues under PRC employment law
Mayer Brown LLP January 19 2012
Currently there is no dedicated law or regulation for privacy protection of employees in Mainland China.

A big year for privacy in Greater China: 2011 wrap up
Baker & McKenzie January 19 2012
2011 was a very busy year in the realm of privacy and data protection in Greater China.

Insurance & Reinsurance

Hong Kong insurance brokers are allowed to set up in Guangdong province
Edwards Wildman Palmer LLP January 27 2012
On 13 December 2011, the eighth supplement (Supplement VIII) to the Closer Economic Partnership Arrangement (CEPA) between Hong Kong and Mainland China was signed, marking the latest enhancement of economic and trade cooperation between Hong Kong and the Mainland.

Intellectual Property

Litigation

Levi Strauss & Co. defends arcuate stitching design mark against infringers
Hogan Lovells January 27 2012
Since 1873, Levi Strauss has stitched the back pockets of its jeans with two connecting double arches that meet in the center of the pocket.

Apple loses its IPAD trademark in China
Wilkinson & Grist January 25 2012
The Intermediate People’s Court in Shenzhen, Guangdong has rejected Apple’s claim of ownership of the IPAD trademark, holding that Proview Technology Shenzhen Company Limited had prior registration of the mark.

Supreme People's Court issues first batch of guiding cases
Orrick Herrington & Sutcliffe LLP January 24 2012
On November 26, 2010, the Supreme People's Courtissued the Provisions on Case Guidance Work (Fa Fa [2010]) No. 51), which marks the preliminary establishment of a "case guidance system" in China.

Media & Entertainment

Corruption digest
Dorsey & Whitney LLP January 19 2012
A leading Chinese referee, Mr Lu Jun, has pleaded guilty to match-fixing and accepting bribes, amid a series of trials involving several officials and referees.

Patents

Compulsory patent licensing under new draft rules – before and after
Hogan Lovells January 27 2012
New draft rules setting out the procedure for compulsory patent licensing in China include monopolistic conduct and public health.

Draft Provisions on Patent Mark Labeling – obscure but practical
Hogan Lovells January 27 2012
The State Intellectual Property Office (SIPO) in China issued a circular seeking public feedback on the draft Provisions on Patent Mark Labeling (Draft Provisions), which, if issued, will replace the 2003 Provisions on the Methods for Marking of Patent Marks and Patent Numbers.

Trade & Customs

Feeling sheepish
Stephenson Harwood January 25 2012
China's sudden wealth has produced bubbles in all sorts of commodities: from garlic bulbs to Tibetan Mastiff puppies.

Trademarks

White Collar Crime

Croatia

Media & Entertainment

Corruption digest
Dorsey & Whitney LLP January 19 2012
Croatia football federation vice-president and former referee, Mr Zelijko Siric and Head of the national refereeing association, Mr Stjepan Djedovic have been arrested under suspicion of taking bribes and rigging matches.

White Collar Crime

Czech Republic

Banking

Bills to implement Omnibus I Directive signed by President
CMS Cameron McKenna January 31 2012
On 23 January 2012, the President signed Bills to amend various laws on financial markets, including banking, insurance, capital markets and investment laws.

Bill to amend the Banking Act temporarily suspended by Lower Chamber of the Parliament
CMS Cameron McKenna January 31 2012
On 25 January 2012, the Lower Chamber of the Parliament decided to temporarily suspend discussions over the Bill to amend the Banking Act.

Capital Markets

Company & Commercial

International Retail Legal Update - New Czech Civil Code and an amendment to the Trade Licensing Act
Eversheds January 24 2012
The new Czech Civil Code has been adopted by the Parliament and is expected to come into force in 2014.

Employee Benefits & Pensions

Pension system reform: some provisions of new laws to introduce pension funds as II. pillar of Czech pension system become effective as of January 2012
CMS Cameron McKenna January 31 2012
On 1 January 2012, some provisions of new laws introducing the most significant reform of Czech pensions system since the collapse of the communist regime become effective.

Employment & Labor

International HR briefing: Czech Republic
Eversheds January 23 2012
On 1 January 2012 fundamental changes to Czech HR-related legislation, including significant amendments to the Labour Code and related legislation, came into effect.

Insurance & Reinsurance

Public

Telecommunications

Czech Telecommunication Office presented its goals for 2012
CMS Cameron McKenna January 25 2012
On 18 January 2012 the Czech Telecommunication Office (CTO) announced its goals for 2012 previously approved by its Council.

Denmark

E-commerce

International Retail Legal Update - Prohibition of counterfeit consumer goods
Eversheds January 24 2012
In a principal ruling on 8 November 2011 the Maritime and Commercial Court in Copenhagen has established that it is prohibited under Council Regulation (EC) 1383/2003 for private persons to buy counterfeit consumer goods over the internet for personal use and have these products sent to Denmark.

Employment & Labor

International HR briefing: Denmark
Eversheds January 23 2012
The Danish Supreme Court established in December 2010 a change in approach regarding compensation for missing or insufficient employment contracts.

Intellectual Property

Litigation

Egypt

Company & Commercial

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Energy & Natural Resources

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Environment

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Trade & Customs

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Estonia

Employment & Labor

International HR briefing: Estonia
Eversheds January 23 2012
In a landmark decision (civil case 2-10-41595), the Harju County Court awarded an employee compensation for legal costs incurred in labour dispute committee proceedings.

Litigation

European Union

Arbitration

Alternative dispute resolution e-bulletin
Herbert Smith LLP January 17 2012
Welcome to our first ADR e-bulletin of 2012.

Aviation

Extension of European Union's emissions trading system to include airlines
WongPartnership January 31 2012
The European Union's Emissions Trading Scheme ("EU ETS") is a cap-and-trade system that was launched in 2005 as one of the major effects by the European Union ("EU") to combat climate change.

Commission opens in-depth investigations into state aid to airports, airlines and purchasers of shipyard assets
Mayer Brown LLP January 31 2012
On 25 January 2012, the Commission opened an in-depth state aid investigation into state support given to French, German and Swedish airports.

Commission closes investigation into SkyTeam alliance
Mayer Brown LLP January 31 2012
On 27 January 2012, the Commission closed its investigation into potential collusion between eight members of the SkyTeam airline alliance.

Banking

Almunía delivers speech on state aid and the banking sector
Mayer Brown LLP January 31 2012
On 24 January 2012, Joaquin Almunía, Vice President of the Commission and responsible for competition policy, delivered a speech on the banking sector and state aid.

Insights from winston & strawn
Winston & Strawn LLP January 30 2012
2011 was the most troubled year for European lawmakers.

Commission updates on regulatory reform
SNR Denton January 27 2012
Speaking at the Guildhall, Michel Barnier looked at the regulatory reforms the Commission pushed forward in 2011 and looked forward to 2012.

Consultation on Directive Regarding Holdings in the Financial Sector (2007/44/EC)
De Brauw Blackstone Westbroek January 27 2012
The European Commission is holding a consultation on the application of this Directive in the various member states and on its effect on cross-border mergers and acquisitions in the financial sector.

Council strengthens Iran sanctions
SNR Denton January 27 2012
The Council has adopted new sanctions against Iran.

Cracks in the Eurozone
Pillsbury Winthrop Shaw Pittman LLP January 26 2012
As the euro crisis deepens both sides of the "Merkozy" couple are full of gloom, and with due cause as this year could see the partial or complete collapse of the currency.

New persons and entities added to EU Syria sanctions list (including 5 banks and 3 petroleum companies)
White & Case LLP January 25 2012
On 23 January 2012, the Council of the European Union added new names to its list of designated parties under the Syria sanctions regime through Council Decision 2012/37/CFSP.

Solvency II Industry Readiness Survey
Matheson Ormsby Prentice January 24 2012
The second Solvency II Industry Readiness Survey was issued by the Central Bank of Ireland’s dedicated Solvency II team on 1 September 2011.

Asset management and investment funds expected developments and deadlines in 2012
Matheson Ormsby Prentice January 24 2012
The past year was a busy year in terms of financial regulation, with the transposition of the UCITS IV Directive into national law, the final adoption of the Alternative Investment Fund Managers Directive (“AIFMD”) and the introduction of a new Corporate Governance Code for the Irish Funds Industry, to name just a few developments.

New EU Syria sanctions come into force
Baker & McKenzie January 24 2012
The EU has implemented new sanctions against Syria, as set out in Regulation 36/2012 repealing and replacing the existing sanctions regime.

The United States and the European Union target Bank Tejarat for sanctions
Wiley Rein LLP January 24 2012
On January 23, 2012, the U.S. Department of Treasury, pursuant to Executive Order 13382, which prohibits transactions with and freezes the assets of weapons of mass destruction proliferators and their supporters, announced the designation of Bank Tejarat, Iran's third-largest bank for sanctions.

Navigating bond repurchases in Europe and the United Kingdom
Latham & Watkins LLP January 19 2012
The new year has not seen much improvement in the state of the debt markets, especially in Europe, but issuers of bonds may take advantage of one aspect of this gloomy market.

ESMA 2012 work programme
Dechert LLP January 18 2012
On 4 January 2012 ESMA published its 2012 work programme.

The Danish Presidency’s work programme to 30 June 2012
Dechert LLP January 18 2012
On 6 January 2012, the Danish Presidency of the Council of the EU published its work programme for the six-month period to 30 June 2012.

International regulatory update 9-13 January 2012
Clifford Chance LLP January 16 2012
The Danish EU Council Presidency has published compromise texts for the proposed fourth package of amendments to the Capital Requirements Directive (CRD 4), comprising a directive governing access to deposit-taking activities and the prudential supervision of credit institutions and investment firms and a regulation on prudential requirements for credit institutions and investment firms.

Capital Markets

ESMA advice increases certainty on third-country AIFM Directive questions
Chevalier & Sciales January 31 2012
The European Securities and Market Authority’s 500 pages of technical advice to the European Commission on Level 2 measures implementing the Alternative Investment Fund Managers Directive have helped to bring greater certainty to the global fund industry on what it can expect in July 2013 and thereafter.

ESMA finalises advice to European Commission on AIFMD level 2 measures
Chevalier & Sciales January 31 2012
The European Securities and Markets Authority has published on November 16 its final advice to the European Commission on the detailed rules underlying and implementing the Alternative Investment Fund Managers Directive.

Market Abuse Directive: inside information: ESMA reminder about dividend payments and policy
Squire Sanders January 30 2012
On 9 January 2012, the European Securities and Markets Authority (‘ESMA’), published a Question and Answer document on the operation of the Market Abuse Directive (2003/6/EC).

EU Council of Ministers updates position on EMIR
Katten Muchin Rosenman LLP January 27 2012
On January 24, the EU Council of Ministers published a press release setting out its evolving position with respect to the proposed European Market Infrastructure Regulation.

ECOFIN presses ahead on EMIR
SNR Denton January 27 2012
At the meeting of Economic and Financial Affairs Ministers on 24 January, it discussed the proposed Regulation on OTC Derivatives, Central Counterparties and Trade Repositories.

ESMA consults on short selling and CDS
SNR Denton January 27 2012
ESMA has published a consultation paper setting out draft technical standards supporting the Regulation on short selling and credit default swaps, which is about to be published and will apply from 1 November 2012.

ESMA publications
De Brauw Blackstone Westbroek January 27 2012
ESMA has held a consultation seeking comments on the technical advice it proposes to give to the European Commission on delegated acts concerning the amended Prospectus Directive.

ESMA speaks on CRAs
SNR Denton January 27 2012
Verena Ross spoke at the ECON hearing on CRAs.

MiFID 2: change and prescription
SNR Denton January 24 2012
On 20 October, the European Commission presented its legislative proposals for a package of measures to update the Markets in Financial Instruments Directive (MiFID).

ESMA consultation on MiFID compliance function requirements
Dechert LLP January 18 2012
MiFID requires investment firms to implement a series of systems and controls aimed at securing a robust governance framework, with a clear organisational structure and lines of responsibility, and effective risk management and compliance processes.

ESMA 2012 work programme
Dechert LLP January 18 2012
On 4 January 2012 ESMA published its 2012 work programme.

Guidelines on systems and controls for highly automated trading
Dechert LLP January 18 2012
On 22 December 2011, the European Securities and Markets Authority (“ESMA”) published its final report on guidelines on systems and controls in an automated trading environment for trading platforms, investment firms and competent authorities (the “guidelines”).

Provision of the KIID – FSA letter to IMA
Dechert LLP January 18 2012
A number of KIID implementation issues were debated at a meeting with the FSA held by the Investment Management Association (the “IMA”) in September 2011.

ESMA consultation on MiFID suitability requirements
Dechert LLP January 18 2012
Also on 22 December 2011, ESMA published a consultation on guidelines on certain aspects of MiFID’s suitability requirements.

EMIR negotiations likely to continue into 2012
Dechert LLP January 18 2012
At the end of December 2012, media reports appeared stating that delays are likely to occur in the negotiations on the proposed European Market Infrastructure Regulation (“EMIR”).

Disclosure of inside information related to dividend policy under Market Abuse Directive
A&L Goodbody January 17 2012
The European Securities and Markets Authority, ESMA (formerly "CESR") has, in the context of an additional Q&A on the common operation of the Market Abuse Directive, taken the opportunity to remind issuers that they should consider any relevant information related to dividends payments and policies as inside information, if that information is likely to have a significant effect on the prices of either the issuer's shares or related derivatives.

Company & Commercial

Irish consultation on EU Commission proposal to repeal, replace and amend the two Accounting Directives with a single directive
A&L Goodbody January 10 2012
The EU Commission is proposing to repeal, replace and amend the two current Accounting Directives - 78/660/EEC (on individual financial statements) and 83/349/EEC (on consolidated financial statements) of limited liability companies – by a single Directive (COM (2011) 684 final), updated with a view to better accommodating the present and future needs of preparers and users of financial statements.

House of Commons objects to proposed Common European Sales Law
Herbert Smith LLP January 3 2012
The House of Commons has objected to the proposed Regulation to introduce a Common European Sales Law on the basis that it does not comply with the principle of subsidiarity.

Competition

The landscape for competition damages actions in London’s Olympic year
Sidley Austin LLP January 31 2012
The European Commission has for some time sought to encourage private claims against companies which have infringed European Union (“EU”) competition laws.

Commission closes Servier case, on misleading information
Mayer Brown LLP January 31 2012
On 27 January 2012, the European Commission (“Commission”) closed its investigation into Servier’s alleged provision of misleading and incorrect information to the Commission in the context of the pharmaceuticals sector inquiry.

EU – Phase I merger notifications
Mayer Brown LLP January 31 2012
Click here to view table.

Deltafina & Alliance one appeal general court ruling in Italian raw tobacco cartel
Mayer Brown LLP January 31 2012
On 28 January 2012, details were published in the Official Journal of appeals made by Deltafina and Alliance one.

Henkel appeals Commission’s decision not to disclose documents to French authorities
Mayer Brown LLP January 31 2012
On 28 January 2012, details were published in the Official Journal of an appeal by Henkel against the Commission’s decision to refuse disclosure of certain documents to the French Competition Authority.

2012: what to expect on the European competition policy front
Baker & McKenzie January 25 2012
February 2012 will mark the second anniversary of European Commission Vice-President Joaquin Almunia's appointment as the Commissioner for Competition.

Overseas player policy places IRFU in legal minefield - Sunday Independent
Mason Hayes & Curran January 22 2012
Players unhappy with the new IRFU limits could well have the law on their side, writes Niall Collins.

Commission’s decision partially repealed (heat stabilizers cartel)
Stibbe January 17 2012
On 29 March 2011, in joined cases C-201/09 and C 216/0938, the Court of Justice confirmed that under Article 25(6) Regulation 1/2003, the suspension of the ten-year limitation period for the imposition of penalties under Articles 101 and 102 TFEU takes effect only inter partes.

Commission’s decision partially annulled by the Court of Justice on the attribution of parental liability to Elf Aquitaine (monochloroacetic acid cartel)
Stibbe January 17 2012
In its decision of January 2005, the Commission fined Arkema and its parent company, Elf Aquitaine, for the former’s participation in a cartel on the market for monochloroacetic acid between January 1984 and May 1999.

Hungry for more? the European Commission launches a dedicated food task force to focus upon possible antitrust infringements in the EU food sector
Wragge & Co LLP January 12 2012
The European Commission has responded to mounting concerns regarding the rising cost of food in the EU by launching its own internal Food Task Force within the Directorate-General of Competition.

Copyrights

Internet service providers not obliged to install general filtering systems to prevent illegal downloading
Hogan Lovells January 27 2012
In what was both a highly anticipated and expected ruling, the Court of Justice of the European Union (CJEU) held that under EU law a national court cannot impose an injunction requiring an internet service provider (ISP) to install, at its own cost, a wide ranging filtering system in order to tackle illegal downloading using peer to peer (P2P) networks.

Corporate Finance/M&A

Corporate Tax

FTT debate poses more questions than provides answers
Matheson Ormsby Prentice January 23 2012
Tax proposals at an EU level always generate much sound and fury.

C-591/10 Littlewoods Retail Ltd & others – opinion
Dorsey & Whitney LLP January 12 2012
Advocate General Trestenjak today released her Opinion in C-591/10 Littlewoods Retail Ltd and Others.

Derivatives

ESMA 2012 work programme
Dechert LLP January 18 2012
On 4 January 2012 ESMA published its 2012 work programme.

E-commerce

Federal Trade Commission (FTC) and privacy regulation
Arent Fox LLP January 30 2012
On January 25, 2012, the European Commission (EC) proposed comprehensive reform to the European Union (EU) 1995 data protection rules.

Online privacy rights strengthened by EU data protection reform
RPC January 28 2012
The EU has proposed important reforms to data protection laws.

European Commission to reform data protection framework
Shook Hardy & Bacon LLP January 27 2012
The European Commission (EC) has proposed a new data protection framework seeking to streamline existing directives and strengthen individuals’ online privacy rights.

Employee Benefits & Pensions

Reform of EU data protection laws – no immediate action by pension schemes required
Mayer Brown LLP January 27 2012
The European Commission (“EC”) has proposed a comprehensive reform of EU data protection laws.

Employment & Labor

Employees on long-term sick leave do not accrue holiday indefinitely
Bircham Dyson Bell January 25 2012
The ECJ has confirmed that workers on long-term sickness absence cannot carry over their untaken statutory annual leave indefinitely.

Annual leave and long term sickness absence
RPC January 11 2012
In KHS AG v Schulte, the European Court of Justice (ECJ) decided that an employee who is unfit for work over several consecutive years can carry-over annual leave, but not indefinitely.

Energy & Natural Resources

European Union announces adoption of stricter sanctions vs. Iran
Gibson Dunn & Crutcher LLP January 30 2012
On January 23, 2012, the Council of the European Union agreed to impose additional restrictive measures against Iran in the range of industrial sectors, inter alia: in the energy sector, including an embargo of Iranian crude oil imports to the EU; in the financial sector, including against the Central Bank of Iran; in the transport sector; additional export restrictions on gold and on sensitive dual-use goods and technology; as well as additional designations of specific persons and entities.

Modernisation of the EU public procurement rules - what next for the water sector?
Greenberg Traurig LLP January 30 2012
The European Commission has published proposals for modernising the EU public procurements rules with a suite of new directives including a new directive on public procurement to replace Directive 2004/18 (“New Procurement Directive”).

EC efficiency standards
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 29 2012
The European Commission announced January 20 that it is preparing a plan that will designate product groups to which stricter energy efficiency standards will be applied in the next three years.

Energy plans by Danish EU leaders
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 29 2012
Danish climate and energy minister announced January 24 that the nation will use its European Union council presidency to advocate for a low-carbon road map and revise energy efficiency legislation.

EU enhances sanctions, targeting Iranian petroleum, petrochemical, and financial sectors
Steptoe & Johnson LLP January 27 2012
Effective January 23, 2012, the European Union (EU) implemented significantly expanded sanctions against Iran.

Council strengthens Iran sanctions
SNR Denton January 27 2012
The Council has adopted new sanctions against Iran.

EU tightens Iran sanctions with embargo on Iranian oil and petrochemicals plus new sanctions on precious metals, diamonds and key equipment & technology for the petrochemical sector
White & Case LLP January 26 2012
On 23 January 2012, the Council of the European Union (EU) adopted further measures to tighten existing EU sanctions against Iran by introducing an embargo on the imports/purchase/transport of Iranian crude oil, petroleum and petrochemical products (and related financing, financial assistance, insurance).

New EU sanctions expand restrictions on Iran
SNR Denton January 25 2012
On January 23, the European Union imposed the most significant set of trade and financial sanctions on Iran since October 2010.

EU imposes further sanctions against Iran – oil and petroleum sector targeted
Fried Frank Harris Shriver & Jacobson LLP January 24 2012
On January 23, 2012, the European Union (EU) adopted a series of measures against Iran.

Environment

Outlook for 2012: new REACH challenges ahead
Hunton & Williams LLP January 19 2012
This coming year will bring new challenges for chemical manufacturers, importers, distributors and users.

Irish implementation of the Environmental Liability Directive (2004/35/EC)
A&L Goodbody January 4 2012
The European Communities (Environmental Liability) Regulations, 2008 (S.I. No. 547/2008) as amended by the European Communities (Environmental Liability) (Amendment) Regulations 2011 (S.I. No. 307/2011) came into force on 1 April 2009 and transpose the Environmental Liability Directive (2004/35/EC) into Irish law.

General Practice

Presence v residence
Manches LLP January 16 2012
Are we edging towards a single, universally applicable, “test” of habitual residence?

Healthcare

When does software become a medical device?
CMS Cameron McKenna January 25 2012
The European Commission has now published guidance in the form of a MEDDEV (2.1/6) that will assist manufacturers and regulators in determining whether standalone software should be qualified as a medical device and therefore require CE marking under one of the Medical Devices Directives (“MDD”).

SPC decisions rain down from the ECJ
Carpmaels & Ransford January 25 2012
Towards the end of 2011 there was a flurry of activity at the Court of Justice of the European Union, with Europe’s highest court handing down a number of decisions relevant to supplementary protection certificates – a unique form of IP right that provides an additional monopoly that comes into force after expiry of a patent.

Information Technology

ICO welcomes European Commission’s proposed data protection regulation reforms
Hunton & Williams LLP January 31 2012
On January 25, 2012, the European Commission released a data protection law reform package, including its proposed General Data Protection Regulation (the “Proposed Regulation”).

Proposed EU privacy rules add to the burden on international businesses
Gibson Dunn & Crutcher LLP January 31 2012
On Wednesday, January 25, 2012, the European Commission released its proposed new regulation which will replace and update the outdated Data Protection Directive 95/46/EC (the "Directive").

Online privacy rights strengthened by EU data protection reform
RPC January 28 2012
The EU has proposed important reforms to data protection laws.

Data protection: regime change
Mason Hayes & Curran January 27 2012
On 25 January, the EU’s Justice Commissioner, Viviane Reding, announced a proposal for reform of the EU data protection regime.

New EU data protection regulation announced
Sidley Austin LLP January 27 2012
The official proposal for an EU Regulation on Data Protection was released in Brussels on Wednesday 25 January 2012 (the “Regulation”).

EC proposal for new data protection regulation
Proskauer Rose LLP January 27 2012
The European Commission (the “EC”) has announced its anticipated comprehensive reform of EU data protection rules, intended to strengthen online privacy rights and boost Europe's digital economy.

Europe plans significant expansion in data protection rights
Davis Wright Tremaine LLP January 27 2012
On Jan. 25, 2012, the European Commission released the final version of its proposed revisions to the European Union’s data protection framework.

The European Commission's proposal for the review of EU data protection rules in a nutshell
NautaDutilh January 27 2012
After the leak of a work document published on the internet site "www.statewatch.org" at the end of November 2011, the European Commission has issued its official proposal for a regulation on "the protection of individuals with regard to the processing of personal data and on the free movement of such data" (the "Proposal") on 25 January 2012 (see also the European Commission's press release of 25 January 2012).

New data protection rules announced by Commission
CMS Cameron McKenna January 27 2012
The European Commission (“Commission”) has recently announced its long-awaited proposals to update and modernise data protection rules and principles, currently contained in Data Protection Directive 95/46/EC.

EU revamps data protection law: sanctions get serious, governance grows up and individuals can erase their online past lives
Herbert Smith LLP January 26 2012
On Wednesday, 25 January 2012, the European Commission released its long awaited proposals to revise the 1995 EU Data Protection Directive (95/46/EC).

New European Data Protection Regulation
SNR Denton January 26 2012
Yesterday, the European Commission published a new General Data Protection Regulation (the Regulation) which proposes to comprehensively reform data protection rules across the European Union.

Sweeping changes proposed in European data protection law
Squire Sanders January 26 2012
On 25 January 2012, the European Commission published a proposal for a Data Protection Regulation (the “Proposed Regulation”) that is intended to replace the current regulatory framework in Europe.

EU proposes overhaul of data protection laws
Loeb & Loeb LLP January 26 2012
The EU has unveiled its plans for sweeping changes to its dated data protection laws, which would have significant implications for companies both inside and outside the EU that handle data of EU citizens; and may subject them to severe fines of up to 2% of global annual turnover for violations of the new rules.

European Commission proposes sweeping changes to data privacy regulation
Thompson Hine LLP January 26 2012
Since the mid-1990s, the European Union and its member states have enforced one of the most stringent privacy and data security regimes in the world.

European Commission issues new data protection proposals
Duane Morris LLP January 25 2012
Much as was anticipated, the European Commission announced its long-awaited proposals on what are likely to be viewed as drastic changes to data protection law in Europe.

European Commission adopts privacy reform package
Latham & Watkins LLP January 25 2012
The European Commission adopted a proposal to reform European privacy law on 25 January 2012.

"Unleashing the potential of the digital single market": Commission unveils plans for reform of EU data protection law
MacRoberts LLP January 25 2012
Today the European Commission has put forward its proposals on an extensive reform of the European Union's data protection rules which date back to 1995.

European Commission publishes data protection law reform package
Hunton & Williams LLP January 25 2012
On January 25, 2012, the European Commission published its long-awaited legislative package to reform EU data protection rules.

EU proposals on data protection reform published
Manches LLP January 25 2012
The European Commission has today published its long awaited proposals for data protection reform in Europe.

Comprehensive data protection reform proposal released by European Commission
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 25 2012
The European Commission certainly found a way to mark the day.

New EU privacy developments
Baker & McKenzie January 25 2012
The implementation period for EU countries subject to a May 2011 E-Privacy directive that requires stricter controls on cookies has ended.

Complete reform of EU data protection law announced. Requirements to harden
Mayer Brown LLP January 25 2012
The European Commission has today announced its proposals to substantially enhance data protection compliance throughout Europe.

European Commission releases much anticipated data protection regulation: questions remain about what will finally be implemented
Foley & Lardner LLP January 25 2012
On January 25th, the European Commission published a proposal for a new data protection regulation to replace the 1995 Data Protection Directive.

European data protection reform: summary of the 25 January 2012 announcement
Edwards Wildman Palmer LLP January 25 2012
The European Commission has just released a new and comprehensive rewrite of European Union data protection law which, if adopted by the European Parliament, promises to have a major impact on companies doing business in the European Union.

European Commission publishes new data protection proposals
Hogan Lovells January 25 2012
The European Commission has today published its draft proposals for the new General Data Protection Regulation, which sets out stringent rules on how businesses should handle personal data.

Businesses lose sleep over new EU privacy proposal
MacRoberts LLP January 24 2012
The European Commission is set to announce its proposals for new European Union privacy rules on Wednesday.

Concerns over independence of Hungary’s DPA prompt infringement proceedings
Hunton & Williams LLP January 24 2012
On January 17, 2012, the European Commission initiated expedited infringement proceedings against Hungary over recent changes to its Constitution which are considered incompatible with EU law.

Insurance & Reinsurance

Solvency II faces possible further delay
Edwards Wildman Palmer LLP January 30 2012
On 12 January 2012, a vote by the Economic and Monetary Affairs Committee of the European Parliament on the Omnibus II Directive was delayed until 21 March 2012.

CEA publishes FTT views
SNR Denton January 27 2012
CEA has published its comments on the Commission proposal for the FTT.

EIOPA publishes 2012 work programme
SNR Denton January 27 2012
EIOPA has published its work plan for 2012.

The European Union (Motor Insurance) (Limitation of Insurance in Relation to Injury to Property) Regulations 2011
Matheson Ormsby Prentice January 24 2012
Effective from 21 December 2011, these Regulations are designed to give legal effect to the provisions of Directive 2009/103/EC of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles and the enforcement of the obligation to insure against such liability.

European Commission provides guidelines on gender pricing
Matheson Ormsby Prentice January 24 2012
On 22 December 2011, the European Commission adopted guidelines (the “Guidelines”) to assist the insurance industry in implementing unisex pricing, following the ban on the use of gender as a factor in assessing risk and determining the benefits applicable in an insurance policy as a result of the ruling in the Test-Achats case.

European Communities (Reorganisation and Winding Up of Insurance Undertakings) (Amendment) Regulations 2011 (SI 594/2011)
Matheson Ormsby Prentice January 24 2012
Effective from 18 November 2011, the Regulations give further effect to the provisions of Directive 2001/17/EC on the reorganisation and winding up of insurance undertakings.

Key changes to legislation governing life insurers
Matheson Ormsby Prentice January 24 2012
The European Communities (Life Assurance) Framework (Amendment) Regulations 2011 (the “Amendment Regulations”) are designed to give further effect to the provisions of Directive 2002/83/EC (the “Life Insurance Directive”).

European Commission guidelines on gender discrimination in insurance premiums
A&L Goodbody January 24 2012
On 22 December 2011, the European Commission adopted guidelines to assist the insurance industry in implementing unisex pricing, following the ban on the use of gender as a factor in insurance as a result of the ruling in the Test-Achats case in March 2011.

Intellectual Property

Limited means against counterfeit or infringing goods in transit
Hogan Lovells January 27 2012
The Court of Justice of the European Union (CJEU) decided that unauthorized product imitations in transit through EU territory may only be detained by customs if there are specific indications that the products were or will be subject to trade in the EU.

Litigation

Work in progress: update on proposals for a European Patent Court and Unitary Patent
Hogan Lovells January 27 2012
Legislation was proposed in the first half of 2011 for both a single European Patent Court and a Unitary Patent.

Coexistence of "Bavaria Holland Beer" trademark and the geographical indication "Bayerisches Bier" in Europe?
Hogan Lovells January 27 2012
German Federal Court of Justice, Decision of 22 September 2011, I ZR 69/04 ("Bayerisches Bier II") and Court of Appeal of Turin, Italian IP Court, Decision of 2 February 2011, Bavaria NV and Bavaria Italia S.r.l. v. Bayerischer Brauerbund e.V.

Weak but lethal – olives, kings, and ayurveda: broad protection afforded to marks containing descriptive terms
Hogan Lovells January 27 2012
In three recent judgments, the General Court upheld oppositions based on a likelihood of confusion arising from the opposing marks containing the same descriptive terms as the opposed Community trademark applications.

Some clarity on supplementary protection certificates for combination products
Hogan Lovells January 27 2012
The Court of Justice of the European Union (CJEU) clarified when combination products qualify for a supplementary protection certificate (SPC) under the SPC Regulation.

All change for Community trademark specifications?
Hogan Lovells January 27 2012
The current practice of the Office for Harmonization in the Internal Market (OHIM) on Community trademark specifications will need to change if the Court of Justice of the European Union agrees with its Advocate General that Nice class headings in trademark specifications do not necessarily identify with sufficient clarity and precision the goods and services covered by the registration.

Supplementary protection certificates: how a negative can lead to something positive
Hogan Lovells January 27 2012
The Court of Justice of the European Union (CJEU) confirmed the availability of negative term Supplementary Protection Certificates (SPCs).

Jurisdiction questions under Regulation 44/2001
Matheson Ormsby Prentice January 24 2012
In Anglo Irish Bank Corporation Limited v. Quinn Investments Sweden AB & Others the High Court had to consider applications under Articles 23 and 28 of Regulation 44/20001 (the “Brussels Regulation”).

Alternative dispute resolution e-bulletin
Herbert Smith LLP January 17 2012
Welcome to our first ADR e-bulletin of 2012.

Presence v residence
Manches LLP January 16 2012
Are we edging towards a single, universally applicable, “test” of habitual residence?

C-591/10 Littlewoods Retail Ltd & others – opinion
Dorsey & Whitney LLP January 12 2012
Advocate General Trestenjak today released her Opinion in C-591/10 Littlewoods Retail Ltd and Others.

Patents

Petitions for review in the EPO – progress report
Hogan Lovells January 27 2012
Since 2007 when the European Patent Office (EPO) introduced a new procedure to review decisions of the Technical Board of Appeal only two petitions have succeeded.

Product Liability

Opportunities to comment on the implementation of the EU Falsified Medicines Directive
Sidley Austin LLP January 31 2012
The European Commission is currently taking the necessary steps to implement the provisions of the EU Falsified Medicines Directive (2011/62/EU), published on 1 July 2011 and amending the EU Medicinal Products Directive (2001/83/EC).

Projects & Procurement

Proposals for the modernisation of European public procurement: progress or hindrance?
Reed Smith LLP January 30 2012
The current European public procurement rules, intended to ensure open EU-wide competition for public contracts are contained in two directives:

EU public procurement law – a major overhaul of the rules
Fasken Martineau DuMoulin LLP January 23 2012
Suppliers to the public sector, such as suppliers to the NHS, local authorities and government departments, will be aware that the tendering of public sector contracts is subject to detailed rules set out in the Public Contracts Regulations 2006.

Public

Insights from winston & strawn
Winston & Strawn LLP January 30 2012
2011 was the most troubled year for European lawmakers.

Council strengthens Iran sanctions
SNR Denton January 27 2012
The Council has adopted new sanctions against Iran.

Telecommunications

Trade & Customs

Commission launches consultation on revision of regional state aid rules
Mayer Brown LLP January 31 2012
On 24 January 2012, the Commission published a questionnaire on the effectiveness of the current rules on regional state aid.

Greece ordered by Commission to recover state aid
Mayer Brown LLP January 31 2012
On 26 January 2012, the Commission decided that Greek loans granted to agricultural cooperatives in the cereal sector amounted to illegal state aid and ordered Greece to recover loan amounts.

Commission approves French and Greek support to postal operators, but rejects German and Belgian aid
Mayer Brown LLP January 31 2012
On 25 January 2012, the Commission decided that aid granted to Belgian and German postal operators constituted illegal state aid and ordered the recovery of the aid.

Council strengthens Iran sanctions
SNR Denton January 27 2012
The Council has adopted new sanctions against Iran.

Iran and Syria - sanctions update
Reed Smith LLP January 26 2012
The latest sanctions against Iran have been much publicized and are set against a backdrop of Iranian officials threatening to escalate the situation further by blocking the Strait of Hormuz.

Trademarks

White Collar Crime

France

Banking

Generalisation of the 10 year statute of limitation period regarding undisclosed accounts held abroad
Baker & McKenzie January 25 2012
The statute of limitation period applicable to taxpayers on undisclosed accounts held abroad is extended to 10 years.

Favourable adjustment of the thin capitalization measure for "sociétés civiles de construction-vente" and refinancing linked to bankruptcy proceedings
Baker & McKenzie January 25 2012
Since the adoption of the 2011 Finance Act, the scope of application for thin capitalization rules, provided for in article 212 of the French Tax Code, was extended to all loans, including bank loans, backed by security interest or a guarantee, granted by a company belonging to the borrower's group or by a company with a guaranteed undertaking secured by a company related to the borrower.

Capital Markets

Recent changes in French transfer tax treatment impact structuring of block trades
Mayer Brown LLP January 30 2012
France has recently lifted a cap on registration duties (droits d’enregistrement) applicable to certain transfers of equity interests in corporations listed or headquartered in France, which may have a significant impact on the way block trades involving French companies are structured.

Limitation of interest expenses linked to the acquisition of equity securities
Baker & McKenzie January 25 2012
Article 40 of the 2011 Amending Finance Act now limits the deductibility of financial expenses linked to the acquisition of equity securities to the only situations where the purchaser can demonstrate that decisions relating to these securities are effectively taken by it or by a French company of the same economic group, and that it exercises control or influence over the acquired company.

Modification of the tax regime applicable to dividends received from SIIC and SPPICAV by individuals and the increase of withholding tax rates
Baker & McKenzie January 25 2012
Article 8 of the 2012 Finance Act has abolished the 40% relief on dividends coming from exempt benefits distributed by a French Real Estate Investment Trust (French "SIIC") or a French SPPICAV.

French transfer duty on share disposals: a significant increase in registration fees
Baker & McKenzie January 25 2012
During a reading of the 2012 Finance Act, members of Parliament adopted a provision to increase French transfer duty on share disposals from January 1, 2012.

Transfer taxes on listed shares: what are the changes?
Landwell January 20 2012
The French Finance Bill for 2012 (the “Bill”) has introduced new provisions regarding transfer taxes.

Finalisation of the implementation process of UCITS IV under French law
Dechert LLP January 18 2012
Further to the implementation of the UCITS IV Directive in France in August 2011 and further to the update of the French Monetary and Financial Code as well as of the general regulations of the AMF, the French regulator has now issued the following instructions and guidelines in order to complete the general update of the French legal framework in accordance with the UCITS IV Directive.

Commercial Property

Lease agreements executed or renewed as from January 1st, 2012, must henceforth include an environmental schedule whose provisions are defined by Decree 2011-2058 of December 30th, 2011
Baker & McKenzie January 31 2012
Decree 2011-2058 of December 30th, 2011, provides details on the provisions of the environmental schedule mentioned in Article L. 125-9 of the Environmental Code for all lease agreements executed or renewed as from January 1st, 2012, involving commercial premises of more than 2,000 m² and for all leases in effect as of July 14th, 2013.

Incentive tax measures regarding dwellings
Baker & McKenzie January 25 2012
Article 42 of the 2011 Amending Finance Act has introduced an attractive tax regime applicable to the sales or contributions of buildings used as offices or business premises realized by legal entities subject to corporate income tax between the 1st January 2012 to the 31 December 2014, provided that the purchaser undertakes to transform the building acquired into a residential building within a 3 year-period as from the end of the acquisition fiscal year.

Annexe environnementale à joindre aux baux commerciaux - publication du décret précisant son contenu - application immédiate aux baux nouveaux
Landwell January 25 2012
Le décret 2011-2058 du 30 décembre 2011 vient de préciser le contenu de l’annexe environnementale que la loi n° 2010-788 du 12 juillet 2010 portant engagement national pour l’environnement dite «loi Grenelle II» a rendue obligatoire pour les baux portant sur des locaux de plus de 2000 m² à usage de bureaux ou de commerce (article L. 125-9 du Code de l’environnement).

Company & Commercial

2012 : un vent nouveau pour la protection des données personnelles
Ichay & Mullenex Avocats February 1 2012
Chaque année, 1,7 à 2 millions de tonnes de déchets d’équipements électriques et électroniques (DEEE) sont générés par les entreprises et les ménages (source ADEME, Agence de l'Environnement et de la Maîtrise de l'Energie).

International Retail Legal Update - On-line versus off-line sales in France
Eversheds January 24 2012
Recently a company active in the retail market for appliances and consumer electronics notified the acquisition of one of its competitors to the French Competition Authority.

Competition

L’autorité de la concurrence précise sa méthode de calcul des sanctions pécuniaires encourues en cas de pratiques anticoncurrentielles
Landwell December 23 2011
Les sanctions encourues en droit de la concurrence peuvent atteindre en France 10% du chiffre d’affaires mondial réalisé par l’ensemble du groupe.

Construction

Publication of a decree relating to the content and the terms and conditions for issuing the certificate delivered to prime contractors by their sub-contractors
Mayer Brown LLP January 25 2012
A decree dated 21 November 2011 replaces the statutory declarations that sub-contractors must deliver to their prime contractors with certificates relating not only to declaration obligations, but also payment of social security dues and contributions.

Corporate Finance/M&A

Corporate Tax

Details of the main tax measures impacting the hotel sector
Baker & McKenzie January 31 2012
Article 5 of the 2012 Finance Act modifies the tax basis of the 5% registration duties applicable in case of sale of shares of a real estate oriented company.

New tax measures: operators and investors will be heavily impacted
Baker & McKenzie January 31 2012
In 2011, no fewer than 5 Finance Acts were passed (4 amending 2011 Finance Acts and a 2012 Finance Act), which were the result of France's debt reduction policy.

New amendements
Baker & McKenzie January 25 2012
The Finance Act for 2012 notably provides for the following measures concerning individuals.

License and sub-license of industrial property rights between affiliated companies
Baker & McKenzie January 25 2012
Under certain conditions, license and sub-license of industrial property rights (patents and patentable inventions, as well as improvements made to them and ancillary industrial manufacturing processes) qualify for the regime of long-term capital gains allowing for taxation at a reduced rate of 15%, including when licensor and licensee are affiliated companies (Article 39,12 et sequ.

Creation of a tax on companies subject to greenhouse gas emission allowances
Baker & McKenzie January 25 2012
Article 18 of the 2012 Finance Act has established an exceptional tax, due in 2012, on companies subject to the greenhouse gas emission allowance system intended to finance the purchase of new allowances for new installations.

New rules for the use of tax losses: confirmation of their application to previous tax losses remaining unused upon the entry into force of the second 2011 amending finance act and application to the "extended base" mechanism
Baker & McKenzie January 25 2012
Articles 31 and 32 of the 2011 amending finance act legalise the position taken by the tax authorities in their draft guideline published for public consultation on December 8, 2011 on the coming into force of the new cap rules for use of tax losses.

Bringing administrative assistance procedures into line
Baker & McKenzie January 25 2012
To reinforce the effectiveness of the international administrative tax collection assistance, article 59 of the 2011 Amending Finance Act proceeds with the transposition into domestic law of the Council directive 2010/24/EU of 16 March 2010 reinforcing the ability of tax authorities to fight against international tax fraud.

Publication of the law on the financing of social security for 2012
Mayer Brown LLP January 25 2012
The law on the financing of social security for 2012 has been published in the Official Journal of the French Republic (Law No. 2011-1906 of 21 December 2011, Official Journal of the French Republic No. 0296 of 22 December 2011).

Capital gains of the assignment of equity securities between linked companies: a new tougher stance of the regime
Baker & McKenzie January 25 2012
To fight against optimisation schemes consisting in realising short term capital losses immediately deductible from the taxable result at the full statutory rate (33.1/3 %) by transferring equity securities within the same group, last year's 2011 Finance Act implemented a anti-abuse measure on this type of transaction by way of deferred taxation or deduction of such capital gains and losses (French Tax Code, art. 219 I a septies).

Introduction of a new exceptional surtax on corporate tax
Baker & McKenzie January 25 2012
Companies liable for corporate tax that make a turnover over 250 million Euros are now subject to an exceptional surtax equal to 5% of the amount of the corporate tax due for financial years ended from 31 December 2011 established by article 3 of the 2011 Amending Finance Act and codified in article 235 ter ZAA of the General Tax Code.

Changes to mandatory employee profit sharing and Social Security Act for 2012 measures
Baker & McKenzie January 25 2012
The Finance Act for 2012 modifies the formula for calculating the mandatory employee profit sharing to take into account the cap applicable to carry-forward tax losses introduced by article 2 of the second Rectifying Finance Act for 2011.

Transfer taxes on listed shares: what are the changes?
Landwell January 20 2012
The French Finance Bill for 2012 (the “Bill”) has introduced new provisions regarding transfer taxes.

Tax reforms – some recent changes
Dechert LLP January 18 2012
French tax legislation has recently undergone many changes which have a wide-ranging impact for both individuals and trustees, whether French resident or not.

Loi de finances pour 2012 et 4ème loi de finances rectificative pour 2011
Landwell December 28 2011
En complément à l'alerte relative aux principales dispositions adoptées dans le cadre du projet de loi de finances pour 2012 et du quatrième projet de loi de finances rectificative pour 2011 et concernant les entreprises, on trouvera ci-dessous les principales mesures de ces deux textes, relatives à la fiscalité des particuliers et aux retenues à la source.

Actualité France
Landwell December 22 2011
L’actualité fiscale a été particulièrement riche en 2011.

E-commerce

Employee Benefits & Pensions

Entry into force of the financial penalty with regard to equality between men and women
Mayer Brown LLP January 25 2012
As a reminder, law No. 2010-1330 of 9 November 2010 on pension reform provides for a financial penalty for companies with at least fifty employees which are not covered by an agreement relating to equality in the workplace or, failing an agreement, by an action plan.

Analyse
Landwell December 22 2011
Entre réforme des retraites, lois de financement de la sécurité sociale impactant les engagements de retraite et évolution de leurs règles de provisionnement, les passifs sociaux sont amenés à évoluer de façon significative à court terme.

Employment & Labor

Confidential computer data theft
Baker & McKenzie January 31 2012
The Clermont-Ferrand Criminal Court sentenced a former employee who had stolen customer and supplier data files from his former employer.

Publication of a UNEDIC Circular relating to the professional support contract (CSP)
Mayer Brown LLP January 25 2012
The personalised redeployment agreement (CRP) and the professional transition support contract (CTP) were replaced, as of 1st September 2011, by the professional support contract (CSP).

In companies with fewer than 300 employees, is the representative of the trade union section automatically trade union representative to the Works Council?
Mayer Brown LLP January 25 2012
An employee is appointed representative of the trade union section by the CFE-CGC trade union within an economic and social unit (UES).

Does the legal obligation of a parent company to repatriate and redeploy an employee it made available to a foreign subsidiary, in the event of redundancy by the latter, depend on the employee, prior to being posted, having carried out actual duties withi
Mayer Brown LLP January 25 2012
An employee was hired on 2 August 2004 by a company.

Entry into force of the penalty incumbent upon companies not covered by an agreement or an action plan relating to the prevention of harsh working conditions
Mayer Brown LLP January 25 2012
As a reminder, law No. 2010-1330 of 9 November 2010 on pension reform introduces an obligation for certain companies to enter into an agreement or to develop an action plan in favour of the prevention of harsh working conditions.

Can a person from outside the company conduct the dismissal procedure?
Mayer Brown LLP January 25 2012
An employee disputed his dismissal for incompetence particularly on the grounds that the letters inviting him to the prior interview and notifying him of the dismissal were signed by the employer’s accounting firm.

In which cases does a change to the hours of work exceed the employer’s managerial authority and require the employee’s agreement?
Mayer Brown LLP January 25 2012
The employment contract of an employee hired on a full-time basis provided that the latter had to work on a site with hours of work largely in the morning, with a break at midday, and two hours in the middle of the afternoon.

Can an employee come under the forfait-jours scheme (where working time is based on a fixed number of working days per year) if they do not fulfil the conditions laid down by the applicable collective agreement?
Mayer Brown LLP January 25 2012
An employee was hired as a consultant, position 2.2 of the collective agreement.

International HR e-briefing: France
Eversheds January 23 2012
2011 saw two significant decisions by the French Supreme court regarding equal treatment and discrimination.

Édito
Landwell December 22 2011
Dans une étude récente réalisée pour PwC auprès de 800 DRH en Europe, le SIRH est le premier domaine pour lequel les entreprises vont augmenter leur recours à de l’assistance extérieure (devant la formation et l’expertise juridique et fi scale).

Actualité internationale
Landwell December 22 2011
Le Conseil d’État, dans une décision du 29 juin 2011 rendue dans le cadre de la convention franco-américaine, a indiqué qu’un résident fiscal de France pouvait bénéficier d’un crédit d’impôt sur un salaire relatif à une activité exercée aux États-Unis et imposable aux États-Unis compte tenu des dispositions de la convention, même en l’absence d’une imposition effective aux États-Unis.

Environment

Le code de l’environnement consacre une nouvelle section aux émissions industrielles
Ichay & Mullenex Avocats January 27 2012
Le gouvernement français a transposé, par Ordonnance, la directive 2010/75/UE du 24 novembre 2010 relative aux émissions industrielles avec près d’une année d’avance par rapport aux objectifs fixés par la directive.

General Practice

Healthcare

Supplementary protection certificate not infringed by combination product
Hogan Lovells January 27 2012
The Court of Appeal of Paris rejected a request for a preliminary injunction brought by Novartis, the owner of a Supplementary Protection Certificate (SPC) for a medicinal product, against Actavis which used the product in combination with another active ingredient.

Information Technology

Insolvency & Restructuring

Leisure & Tourism

Litigation

International HR e-briefing: France
Eversheds January 23 2012
2011 saw two significant decisions by the French Supreme court regarding equal treatment and discrimination.

Patents

France gives the "protective letter" a try
Hogan Lovells January 27 2012
Since 1 January 2012, and for the first time in France, the Third Chamber of the First Instance Court of Paris, which has exclusive national jurisdiction over patent litigation, accepts the filing of documents similar to the "protective letter" or "Schutzschrift" better known to German patent practitioners.

Private Client & Offshore Services

Germany

Capital Markets

New rules for major holdings of voting rights in Germany
Squire Sanders January 26 2012
On 20 January 2007, the Transparenzrichtlinie-Umsetzungsgesetz (Transparency Directive Implementation Act) came into effect in Germany implementing the European Transparency Directive 2004/109/EC.

Copyrights

Using a photograph as embedded content – copyright relevant "making available" or not?
Hogan Lovells January 27 2012
The Court of Appeal of Düsseldorf decided that the use of a photograph as "embedded content" on a website constitutes a "making available to the public" and, therefore, requires the authorization by the copyright owner.

Designs and trade secrets

Apple v. Samsung: summary update
Oblon Spivak McClelland Maier & Neustadt PC January 31 2012
Engadget has started a "Follow the Saga" feature concerning the ongoing Apple v. Samsung feud, including the most recent announcement that the ban on the original Galaxy Tab 10.1 has been upheld in Germany.

Employment & Labor

International HR briefing: Germany
Eversheds January 23 2012
During 2011 in Germany, there was much review and reorganisation of commercial operations, often accompanied by some form of restructuring.

Insolvency & Restructuring

Litigation

Trademarks

Global

Arbitration

Venezuela withdraws from the World Bank's International Centre for Settlement of Investment Disputes
Milbank Tweed Hadley & McCloy LLP January 31 2012
The World Bank received, on January 24, 2012, “written notice of denunciation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) from the República Bolivariana de Venezuela.

Arbitration law - developments in 2011
Rajah & Tann LLP January 26 2012
Through the years, arbitration as a mode of dispute resolution has gained prominence because it promotes party autonomy with minimal court intervention, amongst others.

Banking

PRIME Finance - specialist panel for resolving global financial disputes
Mayer Brown LLP January 31 2012
A new and dynamic approach to resolving complex cross-border financial disputes was unveiled this month with the opening conference in The Hague of PRIME Finance, the Panel of Recognised International Market Experts in Finance.

Basel speaks on G-SIFIs
SNR Denton January 27 2012
Stefan Ingves spoke on why Basel believes there is a need for specific regulation of G-SIFIs.

Capital Markets

IOSCO publishes OTC trading analysis
SNR Denton January 27 2012
IOSCO has published a follow-on analysis to its report on the trading of OTC derivatives.

IOSCO publishes CIS technical principles
SNR Denton January 27 2012
IOSCO has published its final report on Principles on Suspensions of Redemptions in Collective Investment Schemes.

Corporate Tax

Derivatives

IOSCO publishes OTC trading analysis
SNR Denton January 27 2012
IOSCO has published a follow-on analysis to its report on the trading of OTC derivatives.

E-commerce

New gTLDs expand a marketer’s toolbox but could be a legal nightmare
Borden Ladner Gervais LLP January 30 2012
The application period has begun for the new Internet Corporation for Assigned Names and Numbers (ICANN) generic top level domain (gTLDs) regime which will see the available gTLDs increase from 22 (including .com, .net and .org) to possibly hundreds.

Employee Benefits & Pensions

Global plan governance policies: benefit risk management by the multinational company
Seyfarth Shaw LLP January 26 2012
Globally, subsidiaries (or joint ventures) of multinational companies maintain private retirement plans (DB and/or DC) subject to different local laws.

Employment & Labor

What workers in rice paddies and vacuum cleaner inventors can teach us about leadership
Squire Sanders January 30 2012
As part of a leadership development programme I designed for one of our clients I was asked to consider the attributes and competencies that leaders need during difficult and challenging times – times of austerity!

Energy & Natural Resources

Shale gas delays re market
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The International Association for Energy Economics released a report January 19 concluding that the development of shale gas delays the market for low-emission technologies and renewable energy by up to two decades.

Environment

UN climate change database
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 29 2012
On January 26, the U.N. Framework Convention on Climate Change released the Adaptation Private Sector Initiative Database of more than 100 ideas for businesses and communities to help adapt to climate change.

Information Technology

Outsourcing lawyers: time to refocus
Pillsbury Winthrop Shaw Pittman LLP January 30 2012
Outsourcing attorneys spend many hours negotiating complex terms and conditions governing the delivery of IT outsourcing (ITO) and business process outsourcing (BPO) services.

Patent wars
Stephenson Harwood January 25 2012
One of the many interesting nuggets to be found in Walter Isaacson's posthumous biography of Steve Jobs is that the Apple founder was so determined to "destroy" Google's Android mobile operating system that he was willing to spend US$40 billion to achieve it.

The Sedona Conference® publishes international principles on discovery, disclosure & data protection
Porter Wright Morris & Arthur LLP January 24 2012
The Sedona Conference® recently published the International Principles on Discovery, Disclosure & Data Protection (“International Principles”) through its Working Group 6 on International Electronic Information Management, Discovery and Disclosure.

Insolvency & Restructuring

Litigation

Media & Entertainment

Patents

Trade & Customs

Greece

Trade & Customs

Guernsey

Company & Commercial

Application for the restoration of a “struck off company” – to apply to the registrar or to the court?
AO HALL Advocates January 27 2012
Further to the Red Guides issued last year entitled “Restoration of a Guernsey Company to the Register of Companies” and “Procedures available for the voluntary dissolution of a Guernsey company” respectively, our Corporate and Dispute Resolution teams have recently been involved in various applications to restore Guernsey companies which had been struck off, to the Register of Companies (the “Register”) under the Companies (Guernsey) Law, 2008 (the “Companies Law”).

Corporate Tax

In the image of Guernsey
Guernsey Finance January 30 2012
Guernsey benefits from a modern, state of the art legal regime and is often at the forefront of innovative developments.

Energy & Natural Resources

Guernsey and renewable energy: the other side of the coin
Guernsey Finance January 30 2012
In Guernsey there has been considerable interest in harnessing the natural environment and in particular, the wind.

Media & Entertainment

In the image of Guernsey
Guernsey Finance January 30 2012
Guernsey benefits from a modern, state of the art legal regime and is often at the forefront of innovative developments.

Private Client & Offshore Services

Le making of the Guernsey trust
Guernsey Finance January 30 2012
A canny Scot, George Gretton, has noted that there is a tendency to assume that the trust must have come from England.

In the image of Guernsey
Guernsey Finance January 30 2012
Guernsey benefits from a modern, state of the art legal regime and is often at the forefront of innovative developments.

Where there’s a will...
Guernsey Finance January 25 2012
In June 2011 Guernsey’s government, the States of Deliberation, abolished its forced inheritance law, a rule heralding the way for more freedom for those making wills.

Hong Kong

Banking

Capital Markets

25 percent public float is required to resume trading
Mayer Brown LLP January 30 2012
Hong Kong Exchanges and Clearing Limited ("HKEx") published its listing decision "HKEx-LD23-2011" on 30 December 2011 in which it decided that the listed issuer ("Listco") was required to restore its public float to at least 25 percent before it could resume trading of its shares.

Fund manager not a connected person
Mayer Brown LLP January 27 2012
Quick Read.

Consultation on environmental, social and governance reporting guide
Mayer Brown LLP January 26 2012
The Stock Exchange of Hong Kong Limited (“SEHK”) published its “Consultation Paper on Environmental, Social and Governance Reporting Guide” (“Consultation Paper”) on 9 December 2011 to seek comments from the public on its proposed Environmental, Social and Governance Reporting Guide (“ESG Guide”).

Capital markets quarterly update (October to December 2011)
Mayer Brown LLP January 26 2012
This quarterly update (October to December 2011) highlights recent developments in Hong Kong capital markets practices.

Company & Commercial

Corporate Finance/M&A

Employment & Labor

International HR briefing: Hong Kong
Eversheds January 23 2012
In 2011, the most significant and controversial employment legislation in Hong Kong was the Minimum Wage Ordinance (MWO).

Insurance & Reinsurance

Landmark decision on disclosure of Insurance Brokerage Commission
Edwards Wildman Palmer LLP January 30 2012
Over the years, there has been much debate that the practice of the insurance market in allowing an insurance broker (acting as the agent of the assured) to receive commission from the insurer may contravene the equitable principle that an agent cannot make a profit from his office without disclosing the profit to his principal (the assured).

Litigation

Hungary

Information Technology

India

Company & Commercial

The Government of India allows up to 100% FDI in single-brand product retail trading (subject to certain conditions)
Gibson Dunn & Crutcher LLP January 26 2012
On January 10, 2012, the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India, issued a press note amending the Consolidated Foreign Direct Investment ("FDI") Policy of October 2011 ("Amendment").

Copyrights

Corporate Finance/M&A

India's Supreme Court rules for Vodafone - a welcome signal for global investors
Pillsbury Winthrop Shaw Pittman LLP January 31 2012
The Indian Supreme Court’s decision in the Vodafone case brings to an end the long saga that has kept global investors on edge about the taxation of foreign acquisitions in India.

Largest Maryland trade mission to India coincides with liberalization of Indian securities laws
Kelley Drye & Warren LLP January 31 2012
Maryland is working hard to actively develop new business and investments in India.

Qualified Foreign Investors permitted to directly invest in equity shares of Indian listed companies
Gibson Dunn & Crutcher LLP January 31 2012
The Government in India ("Government") has extended the reach of a Qualified Foreign Investor ("QFI") in India by permitting it to directly invest in equity shares of Indian companies listed on Indian stock exchanges.

Vodafone not liable for taxes on Essar purchase, says India Supreme Court
Paul Weiss Rifkind Wharton & Garrison LLP January 27 2012
A long-running battle between British wireless giant Vodafone and India’s tax authority ended in victory for Vodafone, as India’s Supreme Court decreed that Vodafone does not owe US$4.4 billion in taxes and penalties accruing from its $10.9 billion acquisition of Hutchison Essar in 2007.

Corporate Tax

The Indian case of Vodafone
DLA Cliffe Dekker Hofmeyr January 27 2012
On 20 January 2012, the Supreme Court of India (Civil Appellate Jurisdiction) decided the appeal in Vodafone International Holdings B.V. v Union of India & Anr.

Information Technology

Litigation

Corruption digest
Dorsey & Whitney LLP January 19 2012
Former Bharatiya Janata Party president Mr Bangaru Laxman, who was accused of accepting Rs 1 lakh bribe to realise a fake arms deal, has had his plea for quashing the proceedings rejected by the Supreme Court.

Media & Entertainment

Telecommunications

Trade & Customs

Scotch whisky industry is in for a pleasant surprise
Morton Fraser January 27 2012
The Scotch whisky industry is in for a pleasant surprise when it comes to exports to India, according to the country's chief trade negotiator.

Trademarks

White Collar Crime

Indonesia

Construction

Corruption digest
Dorsey & Whitney LLP January 19 2012
Secretary to the Youth and Sports Minister, Mr Wafid Muharam, allegedly accepted three cheques worth Rp. 3.2 billion (US$325,000) in return for rigging bids for the athletes’ village construction project for the SEA Games in Palembang, South Sumatra.

Litigation

Projects & Procurement

White Collar Crime

Iran

Banking

Treasury Department designates Iranian bank
Winston & Strawn LLP January 30 2012
On January 23rd, the Treasury Department designated Iran's third-largest bank for providing financial services to several Iranian banks and firms already subject to international sanctions for their involvement in Iran's weapons of mass destruction proliferation activities.

Council strengthens Iran sanctions
SNR Denton January 27 2012
The Council has adopted new sanctions against Iran.

Energy & Natural Resources

Council strengthens Iran sanctions
SNR Denton January 27 2012
The Council has adopted new sanctions against Iran.

Public

Council strengthens Iran sanctions
SNR Denton January 27 2012
The Council has adopted new sanctions against Iran.

Trade & Customs

Council strengthens Iran sanctions
SNR Denton January 27 2012
The Council has adopted new sanctions against Iran.

White Collar Crime

Ireland

Banking

Revised Consumer Protection Code and related guidance takes effect
Matheson Ormsby Prentice January 27 2012
On 19 October 2011, the Central Bank of Ireland, published the revised Consumer Protection Code which came into effect from 1 January 2012 for regulated entities including banks, insurance and investment companies and intermediaries.

Irish Central Bank updates UCITS Notices, Non-UCITS Notices and related Guidance Notes
Dechert LLP January 24 2012
The Central Bank has recently announced that it has amended its UCITS Notices, Non-UCITS Notices (“NU Notices”) and related Guidance Notes effective 23 December 2011 and announced policy changes.

Central bank issues amended notices and guidance notes
Matheson Ormsby Prentice January 24 2012
In December 2011, the Central Bank issued amended UCITS Notices, NU Notices and guidance notes.

Regulatory developments in 2011 - activity at the FSO and Central Bank enforcement unit
Matheson Ormsby Prentice January 24 2012
In accordance with the its Enforcement Strategy 2011 – 2012, robust enforcement measures were taken by the Central Bank throughout 2011 against regulated entities and persons involved in the management of those regulated entities that failed to comply with regulatory requirements.

Central bank activity - fitness and probity guidelines, insurance compensation fund levy and new supervision framework introduced
Matheson Ormsby Prentice January 24 2012
The Central Bank of Ireland (the “Central Bank”) has launched its new risk-based supervision framework, PRISM (Probability Risk and Impact System).

Capital Markets

Central bank issues amended notices and guidance notes
Matheson Ormsby Prentice January 24 2012
In December 2011, the Central Bank issued amended UCITS Notices, NU Notices and guidance notes.

Company & Commercial

Audit committee changes for public interest entities
A&L Goodbody January 10 2012
The Department of Jobs, Enterprise and Innovation has recently released Regulations, the European Communities (Statutory Audits) (Directive 2006/43/EC) (Amendment) Regulations 2011, SI No. 685 of 2011.

Director liability for environmental clean up
A&L Goodbody January 1 2012
2011 saw significant developments in the courts in relation to the issue of directors’ liability for the costs of remediation of waste sites, an issue which is particularly crucial where the company which disposed of the waste is not in a position to pay.

Competition

2012 review of Irish Competition Authority merger notifications
A&L Goodbody January 24 2012
A review of the merger notifications made to the Irish Competition Authority during 2011 and analysis of the emerging notification trends by comparison to previous years.

Construction

New relevant contracts tax (RCT) system
Mason Hayes & Curran January 24 2012
Revenue introduced a mandatory electronic RCT system on 1st January 2012.

Successfully defending health and safety prosecutions – Court of Criminal Appeal overturns Circuit Court conviction of construction company
A&L Goodbody January 11 2012
A recent judgment in the case of DPP v PJ Carey (Contractors) Limited (Court of Criminal Appeal, 17 October 2011) establishes principles which may assist in the defence of health and safety claims, where the prosecution does not bring sufficient evidence to establish that there has been a breach of health and safety law.

Corporate Tax

New relevant contracts tax (RCT) system
Mason Hayes & Curran January 24 2012
Revenue introduced a mandatory electronic RCT system on 1st January 2012.

New tax rules - Return of Payments (Insurance Undertakings) Regulations 2011
Matheson Ormsby Prentice January 24 2012
New tax rules have been introduced requiring insurance companies to make yearly returns to the Revenue Commissioners detailing payments made to policyholders.

The Carbon Tax
A&L Goodbody January 4 2012
The Commission on Taxation Report, 2009 recommended the introduction of a carbon tax as a means of generating revenue for the Irish State, while helping to change behavioural patterns around fossil fuel consumption and carbon emissions.

Derivatives

Employment & Labor

Industrial Relations (Amendment) (No. 3) Bill 2011
A&L Goodbody January 24 2012
The Industrial Relations (Amendment) (No. 3) Bill 2011, currently before the Irish parliament, aims to reform the existing system for the making of Employment Regulation Orders (EROs) and Registered Employment Agreements (REAs) following a High Court decision in July 2011 declaring sections of the 1946 and 1990 Industrial Relations Acts to be invalid.

Update on changes to employment regime
A&L Goodbody January 17 2012
In 2011 the Minister for Jobs, Enterprise and Innovation, commenced a programme of reform of the State's employment rights and industrial relations procedures.

Energy & Natural Resources

Position paper on the reform of the water sector in Ireland
A&L Goodbody January 19 2012
Consultation on water services provision

Environment

General Practice

Positive results from Central Bank inspection on the settlement of personal injury claims
Matheson Ormsby Prentice January 24 2012
The Central Bank of Ireland (the “Central Bank”) examined whether insurance firms were compliant with the claims processing requirements of the Consumer Protection Code (“CPC”) (which has now been updated and replaced) and whether insurance firms were making an appropriate settlement offer to customers.

Healthcare

Consent is no minor issue
Matheson Ormsby Prentice January 25 2012
The treatment of minors and the lack of legal clarity surrounding some issues of consent may result in a healthcare professional facing serious ethical and legal predicaments.

The Health Insurance Act, 1994 (Information Returns) (Amendment) Regulations 2011 (SI 2011/690)
Matheson Ormsby Prentice January 24 2012
Effective from 21 December 2011, the Regulations set out the amended format and contents of the information returns specified in Section 7D of the Health Insurance Acts, 1970-1989.

Insolvency & Restructuring

New laws proposed for personal insolvency
McCann FitzGerald January 27 2012
Government proposals for new legislation would alter the law and procedures of personal insolvency in radical ways.

Insurance & Reinsurance

Law Reform Commission issues consultation paper on insurance contracts
Matheson Ormsby Prentice January 24 2012
The Law Reform Commission has issued a consultation paper on insurance contracts.

Law Reform Commission launches consultation on insurance contracts
A&L Goodbody January 17 2012
The Law Reform Commission has launched a consultation paper on insurance contracts.

Litigation

Increased regulation relating to maritime insurance
Matheson Ormsby Prentice January 24 2012
The European Union (Insurance Of Shipowners For Maritime Claims) Regulations 2011 (SI 686/2011) (the “Regulations”) have been passed to transpose Directive 2009/20/EC (the “Directive”) into Irish law.

Shipping & Transport

Isle of Man

Healthcare

Care provider committed 'unacceptable' breach of Data Protection Act
MacRoberts LLP January 25 2012
Praxis Care Limited, a care company based in both Northern Ireland and the Isle of Man, has taken steps to improve its data protection policies and procedures after an unencrypted memory stick holding sensitive personal information, including medical care and mental health, was lost on the Isle of Man.

Information Technology

Israel

Litigation

Corruption digest
Dorsey & Whitney LLP January 19 2012
Former Prime Minister, Mr Ehud Olmert, denies accusations that he accepted bribes to promote construction housing projects.

Public

Corruption digest
Dorsey & Whitney LLP January 19 2012
Former Prime Minister, Mr Ehud Olmert, denies accusations that he accepted bribes to promote construction housing projects.

White Collar Crime

Corruption digest
Dorsey & Whitney LLP January 19 2012
Former Prime Minister, Mr Ehud Olmert, denies accusations that he accepted bribes to promote construction housing projects.

Italy

Banking

Capital Markets

New tax reporting requirements for funds investing in eligible Italian bonds
Dechert LLP January 18 2012
The Italian tax authorities have recently issued regulations (Decree of 13 December 2011 – No. 11A16232) regarding the new Italian tax reporting requirements for funds investing in eligible Italian bonds.

Competition

Corporate Tax

Derivatives

E-commerce

Seizure of websites for trade mark violation
Baker & McKenzie January 31 2012
On 29 September 2011, in a decision widely reported by the media, the Court of Padua issued a decree ordering the preventive seizure of 493 websites containing a specific trade mark in their domain names, in relation to the alleged crimes of importing, marketing and selling products bearing fake trade marks, and handling goods derived from criminal activity.

Energy & Natural Resources

Italian register for large pV plants closed for 2012
McDermott Will & Emery January 26 2012
On January 20, 2012, Gestore dei Servizi Energetici (GSE), the publicly-owned company that promotes renewable energy sources in Italy, announced that the budget for the second half of 2012 for large solar photovoltaic (PV) plants has already been used up by excessive demand in 2011.

Italian Government stops incentives for ground-mounted PV plants on agricultural lands
McDermott Will & Emery January 26 2012
As part of the liberalisation package adopted on 20 January 2012, the Italian Government has decided to stop incentives for ground-mounted photovoltaic (PV) plants on agricultural land.

Litigation

Corruption digest
Dorsey & Whitney LLP January 19 2012
The ex-lawyer of Dr Silvio Berlusconi, Mr David Mills, has told a Milan court that he was ashamed to have falsely accused the former Italian Prime Minister of bribery.

Projects & Procurement

Telecommunications

Ministry of Economic Development launches a public consultation on the next generation access networks territorial coverage
Baker & McKenzie January 31 2012
On 19 November 2011, the Italian Ministry of Economic Development - Communications Department launched a public consultation on Next Generation Access Networks (NGAN) coverage of the Italian territory.

Trademarks

White Collar Crime

Japan

Company & Commercial

Environment

Tokyo
Stephenson Harwood January 25 2012
Yasuhiro Sonoda's hands shook as he lifted the glass to his lips.

Trademarks

Japan Patent Office changes trademark classifications
Hogan Lovells January 27 2012
The Japan Patent Office (JPO) changed its examination guidelines regarding the classification of goods and services, effective 1 January 2012.

Jersey

Banking

Creation of security over movable property under Jersey law
Bedell Cristin January 26 2012
Many offshore financing and lending transactions involve the creation of charges over collateral which is situated in Jersey.

Statutory recognition of netting, contractual subordination and non-petition provisions under Jersey law
Bedell Cristin January 26 2012
With the continuing development of sophisticated cross-border financial transactions, certain contractual practices have evolved and, with the passage of time, become recognised as standard in the relevant marketplace.

Capital Markets

Commercial Property

Developing land in Jersey: issues for the unwary
Ogier January 27 2012
In the current economic climate, margins have reduced considerably for all businesses - those developing property, whether for residential or commercial use, are no exception.

Developing land in Jersey: issues for the unwary
Ogier January 26 2012
In the current economic climate, margins have reduced considerably for all businesses - those developing property, whether for residential or commercial use, are no exception.

Derivatives

Insolvency & Restructuring

Litigation

Two birds and a tiger - duty of outgoing trustee to hand over trust documents and information to incoming trustee
Bedell Cristin January 30 2012
In the recent case of In the matter of the Bird Charitable Trust and the Bird Purpose Trust the Royal Court of Jersey had to consider the nature of an outgoing trustee's obligation to hand over documents and information to an incoming trustee upon retiring as a trustee.

Private Client & Offshore Services

Jersey private placement funds
Bedell Cristin January 27 2012
A new private placement fund regime has been introduced in Jersey, with the issue of the Jersey Private Placement Fund Guide (the "Guide") by the Jersey Financial Services Commission ("JFSC") on 26 January 2012.

Securitization & Structured Finance

Jordan

Capital Markets

Overview of the securities law: Jordan
SNR Denton January 17 2012
Transactions involving the subscription and dealing with shares of public shareholding companies and corporate bonds in the Hashemite Kingdom of Jordan were, prior to the issuance of the Temporary Securities Law No. 76 of 2002 (the Securities Law), handled generally by the Amman Financial Market (AFM), with it taking on the role of both the Stock Exchange and the regulatory body.

Company & Commercial

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Energy & Natural Resources

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Environment

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Trade & Customs

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Kenya

White Collar Crime

Corruption digest
Dorsey & Whitney LLP January 19 2012
Kenya has replicated an Indian website launched in 2008 to help the public fight corruption.

Kuwait

Company & Commercial

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Energy & Natural Resources

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Environment

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Trade & Customs

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Lebanon

Company & Commercial

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Energy & Natural Resources

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Environment

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Trade & Customs

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Luxembourg

Capital Markets

Adapting the SIF law for the AIFM Directive era
Chevalier & Sciales January 31 2012
Four and a half years after Luxembourg introduced the law creating the Specialist Investment Fund regime for alternative vehicles, the grand duchy’s government has drafted legislation amending the SIF rules.

Macau

White Collar Crime

Corruption digest
Dorsey & Whitney LLP January 19 2012
According to a former manager of a Swire Pacific subsidiary, Mr Frederico Marques Nolasco da Silva, Macau’s former public works chief, Mr Ao Man-Long, requested bribes to renew a contract.

Malaysia

Construction

Corruption digest
Dorsey & Whitney LLP January 19 2012
Husband of the former head of the Iskandar region, Mr Mohd Amin Suhaimi, allegedly accepted RM1.6 million (S$655,000) from construction firm Detect Engineering Sdn Bhd in return for helping it win a contract worth approximately RM817,000 awarded by Iskandar Investment Bhd.

Projects & Procurement

White Collar Crime

Mexico

Commercial Property

Opportunity to recover 70 percent of the paid of property tax as well as the public lighting fees
Baker & McKenzie January 20 2012
Regardless of the Mexican courts' precedents stating that the property tax and the public lighting fees are unconstitutional, such levies continue to be collected.

Company & Commercial

Mexican authorities amend provisions governing Mexican companies
Baker & McKenzie January 24 2012
On December 15, 2011, a presidential decree was published at the Official Gazette that amended, added or repealed several provisions contained in the Foreign Investment Law, the General Law of Commercial Companies, the Organic Law of the Federal Public Administration, the Federal Law of Governmental Fees, the Federal Law of Administrative Proceedings and the Federal Law for the Development of Micro Industries and Craft Activities.

Corporate Finance/M&A

Corporate Tax

Employment & Labor

Amendments to the general guidelines to comply with the First Employment Program
Baker & McKenzie January 25 2012
The general guidelines to comply with the First Employment Program (the "Program") were amended by a decree published in the Federal Official Gazette on December 17, 2007, in order to increase the number of employers and workers that are benefited by the Program.

Update of the operational guidelines to comply with the First Employment Program
Baker & McKenzie January 24 2012
An update to the operational guidelines to comply with Mexican Social Security Institute's First Employment Program ("The Program") was published in the Federation's Official Gazette on December 5, 2011.

Information Technology

Mexico publishes regulations to the federal Data Protection Law
Baker & McKenzie January 25 2012
On July 5th, 2010, The Mexican Ministry of the Interior (the "Ministry") published the Mexican Federal Law for the Protection of Personal Data in Control of Private Persons (the "Data Protection Law" or the "Law"), which became in force on July 6, 2010.

Public

Trade & Customs

Approval of the Peru-Mexico trade integration agreement
Baker & McKenzie January 24 2012
On January 9, 2012, the Ministry of Foreign Affairs ("SRE") published in the Federal Official Gazette the Decree whereby the Senate of the Congress ratified the Trade Integration Agreement between the United Mexican States and the Republic of Peru, signed in Lima, Peru on April 6, 2011.

Netherlands

Banking

Bill submitted on bank levy
De Brauw Blackstone Westbroek January 27 2012
In December 2011, the Minister of Finance submitted a Bill introducing a bank levy.

AFM publishes rules for key investor information
De Brauw Blackstone Westbroek January 27 2012
The simplified prospectus for investment institutions has been replaced by the key investor information.

Law and regulation changes as of 1 January 2012
De Brauw Blackstone Westbroek January 27 2012
The following legislation came into force on 1 January 2012

Proposed ban on bonuses extended to apply to state-aided groups
De Brauw Blackstone Westbroek January 27 2012
The Minister of Finance has published an amendment to the bill introducing a ban on bonuses at state-aided financial institutions.

Capital Markets

Law and regulation changes as of 1 January 2012
De Brauw Blackstone Westbroek January 27 2012
The following legislation came into force on 1 January 2012

AFM publishes budget and plans for 2012
De Brauw Blackstone Westbroek January 27 2012
The AFM has published its 2012 budget, which also highlights topics that the AFM wants to pay special attention to this year.

AFM starts pilot on fast-track fines for acting as an intermediary without a licence
De Brauw Blackstone Westbroek January 27 2012
The pilot concerns cases involving violations of section 2:80.1 FMSA (acting as an intermediary without a licence) where the offender does not dispute the facts and legal assessment of the facts and cooperates with a fast-track processing of the case.

AFM repeals guidelines
De Brauw Blackstone Westbroek January 27 2012
The AFM has repealed the following policy guidelines.

Converium collective settlement declared binding by Dutch court
Norton Rose January 24 2012
On 17 January 2012, the Amsterdam Court of Appeal (the Court) declared an international collective settlement binding, even though the alleged misconduct took place outside the Netherlands, and none of the potentially liable parties and only a limited number of the potential claimants were domiciled in the Netherlands.

Economic interests in listed companies: scope of disclosure obligation extended
NautaDutilh January 23 2012
With effect from 1 January 2012 the statutory obligation to disclose substantial shareholdings in listed companies also includes certain cash-settled instruments, such as cash-settled equity swaps and stock options.

Company & Commercial

Competition

Are the Competition Authority's Chinese walls crumbling?
De Brauw Blackstone Westbroek January 26 2012
The Trade and Industry Appeals Tribunal has confirmed that high standards apply to the inter-departmental Chinese walls within the Competition Authority.

E-books under scrutiny…or not?
De Brauw Blackstone Westbroek January 26 2012
The Competition Authority recently indicated that it has high hopes of increased competition in the e-book market as a result of the government's recent decision against fixed prices for e-books and the development of a digital platform on which publishers and sellers will cooperate to store and distribute e-books.

Copyrights

Corporate Finance/M&A

Corporate Tax

Derivatives

Designs and trade secrets

Court of Appeal: no infringement by Samsung of Apple's tablet design
NautaDutilh January 25 2012
Yesterday the Court of Appeal of The Hague rendered its judgment in the Apple/Samsung case on design right issues.

Employment & Labor

International HR briefing: Netherlands
Eversheds January 23 2012
One of the most important court cases to emerge in 2011 was the case brought by Albron Catering against the beer company, Heineken, which went to the European Court of Justice (CJEU) in 2010 and returned to be applied in the Dutch domestic courts last year.

Information Technology

Insurance & Reinsurance

Ban on commissions for complex products
De Brauw Blackstone Westbroek January 27 2012
The Minister of Finance wants to ban commissions for complex and high-impact products from 1 January 2013.

Litigation

Media & Entertainment

New Zealand

Capital Markets

FMA to issue guidance on effective disclosure in offer documents
Minter Ellison January 27 2012
FMA released yesterday a consultation paper and draft Guidance Note on preparing and presenting prospectuses and investment statements.

FMA seeks feedback on proposed disclosure requirements
Chapman Tripp January 27 2012
The Financial Markets Authority (FMA) yesterday issued a consultation paper on how to prepare prospectuses and investment statements.

Commercial Property

Auckland planning
Minter Ellison January 27 2012
A busy year ahead looms for the Auckland Council as it continues to work through the process of setting up appropriate planning rules for the super-city.

Unitary plans for all?
Minter Ellison January 27 2012
The Confidence and Supply Agreement between ACT and National hints at significant changes to the Resource Management Act (RMA) which go beyond the work streams commences during the previous Parliamentary term.

Housing affordability report
Minter Ellison January 27 2012
The Productivity Commission's draft report into housing affordability was released for consultation prior to the Christmas break.

Company & Commercial

Employment & Labor

Employer justified in refusing to indemnify employee
Bell Gully January 25 2012
The Court of Appeal has recently confirmed that the duty of indemnification does not apply in a situation where the employee's conduct fell outside the reasonable performance of her duties (Katz v Mana Coach Services).

Energy & Natural Resources

Fresh water reform
Minter Ellison January 27 2012
Fresh water was a hot topic during the 2011 election campaign and will be central to the Government's environmental reform agenda in 2012.

Emissions trading scheme
Minter Ellison January 27 2012
In December last year, the Government banned industrial gas units from New Zealand's Emissions Trading Scheme (ETS) following the recommendations of the 2011 ETS Review Panel.

Crown Minerals Act review
Minter Ellison January 27 2012
Petroleum and mineral projects are likely to continue to hit the headlines in 2012.

Environment

Proposed environmental reporting legislation
Minter Ellison January 27 2012
The government has released a discussion document which proposes to introduce legislation requiring the Parliamentary Commissioner for the Environment to submit five-yearly independent reports on the state of the environment.

Simplifying and streamlining of the RMA continues
Minter Ellison January 27 2012
The Government will continue to implement proposals to simplify and streamline the RMA in 2012 as part of its two RMA reforms.

Standard on biodiversity offsets released
Buddle Findlay January 26 2012
The international Business and Biodiversity Offsets Programme (BBOP) has released a Standard on Biodiversity Offsets.

Litigation

Public

Regulatory standards – the path forward
Bell Gully January 24 2012
The National and ACT parties have agreed to progress a watered-down version of the Regulatory Standards Bill (Bill).

North Korea

Public

Corruption digest
Dorsey & Whitney LLP January 19 2012
Former Director General of Inter-Services Intelligence, General Ziauddin Khawaja, has accused North Korea of trying to bribe him with five million dollars in 1995 over the “missile programme”.

White Collar Crime

Norway

Employment & Labor

International HR briefing: Norway
Eversheds January 23 2012
In this briefing we summarise the rules set out in chapter 10 of the Norwegian Working Environment Act which set daily and weekly limits on the number of hours that can be worked by employees, as well as minimum requirements for rest breaks.

Oman

Banking

New rules for Islamic banks in Oman
SNR Denton January 18 2012
A recent report in the Times of Oman reported that an official at the Central Bank of Oman (CBO) is expecting the CBO to publish new regulations for Islamic banks by the end of January this year.

Company & Commercial

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Construction

Mechanic’s lien
Curtis Mallet-Prevost Colt & Mosle LLP January 24 2012
Conceptually, a mechanic's lien is a security interest granted in a property by the owner of the property to the persons who have supplied labour, materials or services for the improvement or development of the underlying property.

Employment & Labor

New amendments to Oman’s Labour Law
Curtis Mallet-Prevost Colt & Mosle LLP January 26 2012
The recently promulgated Royal Decree 113/2011 has made key amendments to some provisions of Oman’s Labour Law (the “Labour Law”).

Energy & Natural Resources

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Environment

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Trade & Customs

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Pakistan

Public

White Collar Crime

Peru

Trade & Customs

Poland

Employment & Labor

International HR briefing: Poland
Eversheds January 23 2012
In this briefing we review key developments from last year and look at what to expect in 2012.

Qatar

Company & Commercial

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Corporate Tax

Subsidiaries of Qatar Exchange listed companies not exempt from tax
SNR Denton January 17 2012
In a letter dated 22 November 2011 the Qatari Public Revenues and Taxes Department advised that companies that are wholly or partially owned by public companies listed on the Qatar Exchange will be liable for tax to the extent that they are indirectly owned by shareholders who are not exempt from Qatari tax.

Energy & Natural Resources

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Environment

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Trade & Customs

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Romania

Employment & Labor

International HR briefing: Romania
Eversheds January 23 2012
Prompted by the adverse economic conditions and pressure from private sector investors, the Romanian legislator took several bold steps in 2011 to redress some of the more employee-friendly aspects of labour legislation.

Russia

Aviation

Russia to ameliorate rising air travel costs
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 29 2012
Russia’s transportation minister promised last week to introduce measures to reduce the price of international flights for Russians to compensate for the European Union’s January 1 inclusion of global airlines in its greenhouse gas Emissions Trading System.

Company & Commercial

Consolidated plan of inspections of businesses in 2012 is now available for review
Baker & McKenzie January 27 2012
The official website of the General Prosecutor’s Office of the Russian Federation hosts a consolidated plan of planned inspections of legal entities and entrepreneurs by various controlling bodies in 2012.

Environment

Healthcare

Patent term extension now also available for pharmaceutical dosage forms
Hogan Lovells January 27 2012
The Higher Arbitrazh Court of Russia invalidated the provision of the Administrative Regulation on Patent Term Extension (PTE) which dealt with medicines due to its limited scope compared with the broader definition in the new Federal Law on the Circulation of Medicines of April 2010.

Insolvency & Restructuring

Russian law aspects of insolvency
Hogan Lovells January 23 2012
A simple, clear and effective insolvency regime is a vital element in attracting both domestic and foreign investment in a jurisdiction like Russia.

Intellectual Property

Significant developments in the Russian court system - creation of the intellectual property court
Baker Botts LLP January 30 2012
As of December 2011, two federal constitutional laws were enacted in Russia, whereby a new specialised intellectual property court that is intended to deal with cases concerning protection of IP rights will be set up for the first time in Russia.

Litigation

Long-awaited Russian IP court finally becomes reality
Hogan Lovells January 27 2012
The IP court will be the first specialized court in the system of the Russian Arbitrazh (federal commercial) courts.

Patents

Trademarks

Saudi Arabia

Company & Commercial

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Energy & Natural Resources

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Environment

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Trade & Customs

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Singapore

Arbitration

Banking

MAS issues revised MAS Notice 637 incorporating Basel disclosure requirements on remuneration
Allen & Gledhill LLP January 27 2012
On 16 December 2011, the Monetary Authority of Singapore (the "MAS") issued a revised MAS Notice 637 to Banks on Risk Based Capital Adequacy Requirements for Banks Incorporated in Singapore.

Merchant banks to comply with higher paid-up capital requirements and new minimum capital adequacy ratios
Allen & Gledhill LLP January 27 2012
Effective from 1 April 2012, merchant banks incorporated in Singapore will have to maintain a higher minimum paid-up capital.

Capital Markets

Credit rating agencies to be regulated by the MAS
WongPartnership January 31 2012
The Monetary Authority of Singapore ("MAS") has made the business of providing of credit rating services a regulated activity under the Securities and Futures Act ("SFA") with effect from 17 January 2012.

Company & Commercial

Parliament introduces Evidence (Amendment) Bill 2012: legal professional privilege for in-house counsel, opinion evidence, computer output, hearsay
Allen & Gledhill LLP January 27 2012
The Evidence (Amendment) Bill 2012 (the "Bill") was read the first time in Parliament on 16 January 2012.

Copyrights

Tiananmen KTV & Lounge Pte Ltd Club Infinitude Pte Ltd & ors v Innoform Entertainment Pte Ltd (CT 1 of 2010)
WongPartnership January 31 2012
This case is of significance as it is the first application involving a licence scheme in respect of cinematograph films before the Copyright Tribunal following the expansion of its jurisdiction in 31 December 2009 to cover a wider range of licence schemes.

Corporate Tax

Goods and Services Tax Act amended with effect from 1 January 2012 to implement Budget 2011 changes
Allen & Gledhill LLP January 27 2012
Changes have been made to the Goods and Services Tax Act with effect from 1 January 2012 to give legislative force to the goods and services tax ("GST") initiatives announced in Budget Statement 2011, as well as amendments arising from an ongoing review of the GST system.

Employment & Labor

Energy & Natural Resources

Update on Energy Conservation Bill
WongPartnership January 31 2012
In April 2009, the Inter-Ministerial Committee for Sustainable Development unveiled its blueprint for Sinapore's sustainable development titled "A Lively and Liveable Singapore - Strategies for Sustainable Growth" ("Sustainable Blueprint").

Environment

Extension of BCA's Green Mark certification scheme to schools in Singapore
WongPartnership January 31 2012
The Building and Construction Authority of Sinapore ("BCA") has released the Green Mark certification scheme to schools in Singapore.

Information Technology

MICA issues separate consultation paper on DNC registry
Baker & McKenzie January 31 2012
The Ministry of Information, Communications and the Arts (MICA) has issued a consultation paper on the proposed data protection regime for Singapore.

Insolvency & Restructuring

Litigation

Trade mark application by Avtar Singh and Harkirat Singh trading as Aero Club and opposition thereto by the Timberland Company [2011] SGIPOS 14
WongPartnership January 31 2012
The applicants applied to register a series of two trade marks, "WOODLAND & tree device" ("Application Mark"), in Singapore in Class 25 in respect of "Clothing, clothing belts, socks, footwear, headgear".

Media & Entertainment

Public

Trademarks

Slovenia

Litigation

Corruption digest
Dorsey & Whitney LLP January 19 2012
Former Slovenian Prime Minister Janez Jansa has won damages for libel from Finnish television YLE over a 2008 report which accused him of bribery.

Media & Entertainment

Public

White Collar Crime

South Africa

Company & Commercial

The conversion of par value shares into no par value shares for company law purposes
DLA Cliffe Dekker Hofmeyr January 13 2012
Since the introduction of the new Companies Act on 1 May 2011, consultants have battled with the problem as to whether the conversion of par value shares by a company into no par value shares will result in a tax liability for purposes of the Eighth Schedule to the Income Tax Act, No 58 of 1962 (the Act).

Corporate Tax

Dividends tax: questions and answers
DLA Cliffe Dekker Hofmeyr January 27 2012
The dividends tax, a new form of tax on dividends paid by companies, comes into effect in South Africa soon.

When can SARS re-characterise contractual arrangements for taxation purposes?
DLA Cliffe Dekker Hofmeyr January 27 2012
Tax planning structures normally involve multiple parties.

High net worth individuals increasingly on SARS’ radar
DLA Cliffe Dekker Hofmeyr January 20 2012
SARS recently announced that, following a year-long investigation, it had uncovered thousands of local High Net Worth Individuals (HNWIs) who were not on the tax register.

Employment & Labor

Planning for public holidays and extra public holidays in 2012
DLA Cliffe Dekker Hofmeyr January 25 2012
The 16th of December 2012 is the only public holiday that falls on a Sunday.

Litigation

When can SARS re-characterise contractual arrangements for taxation purposes?
DLA Cliffe Dekker Hofmeyr January 27 2012
Tax planning structures normally involve multiple parties.

Private Client & Offshore Services

South Korea

Company & Commercial

White Collar Crime

Corruption digest
Dorsey & Whitney LLP January 19 2012
An aide to a brother of President Lee Myung-bak has been arrested for allegedly taking bribes from the chairman of SLS Group, Mr Lee Kuk-chul, in return for business favours.

Spain

Copyrights

Spanish Government abolishes controversial copyright levy system
Hogan Lovells January 27 2012
By means of the Royal Decree-Act 20/2011, the new Spanish Government – in office since 20 December 2011– abolished Article 25 of the Copyright Act which set out the copyright levy system in Spain.

E-commerce

Online gaming resolutions adopted
Baker & McKenzie January 31 2012
On 31 October 2011, two online gaming resolutions from the Directorate General for Game Management were adopted to implement the recent Law 13/2011 on Online Gaming.

Information Technology

Intellectual Property

First IP courts in Spain as of 1 January 2012
Hogan Lovells January 27 2012
Effective 1 January 2012, Spain has established its first five truly specialized IP courts in Barcelona.

Litigation

First IP courts in Spain as of 1 January 2012
Hogan Lovells January 27 2012
Effective 1 January 2012, Spain has established its first five truly specialized IP courts in Barcelona.

Media & Entertainment

Sweden

Employment & Labor

International HR e-briefing: Sweden
Eversheds January 23 2012
In an important ruling, the Swedish Labour Court has ruled that the dismissal of employees employed by Scandinavian Airline System (SAS) was directly discriminatory, since their dismissals were a direct consequence of their age.

Litigation

Switzerland

Banking

Switzerland enters the anti-corruption enforcement arena: lessons from the Alstom case
Baker & McKenzie January 25 2012
Over the last decade, the United States has far surpassed other developed countries in the effort to investigate and punish corrupt behavior committed abroad.

Another catch-22 for Swiss accountholders
Morvillo Abramowitz Grand Iason Anello & Bohrer January 12 2012
In recent months, at least one Swiss bank has sent letters notifying its U.S. customers that the Internal Revenue Service has submitted a request to the Swiss Federal Tax Administration (SFTA) seeking account records pursuant to a 1996 Convention between the United States and Switzerland.

Capital Markets

Corporate Tax

Derivatives

Employment & Labor

International HR briefing: Switzerland
Eversheds January 24 2012
Employees who become pregnant benefit from various rights, as outlined in this briefing.

Insolvency & Restructuring

Private Client & Offshore Services

White Collar Crime

Syria

Banking

Energy & Natural Resources

Information Technology

Insurance & Reinsurance

Public

Telecommunications

Trade & Customs

Turkey

Company & Commercial

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Energy & Natural Resources

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Environment

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Trade & Customs

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Uganda

Energy & Natural Resources

Corruption digest
Dorsey & Whitney LLP January 19 2012
President Museveni has announced to members of the National Resistance Movement’s Central Executive Committee that he is investigating Justice Minister Kahinda Otafiire following an intelligence briefing that the minister masterminded the leaked oil bribery documents which accused Prime Minister Amama Mbabazi and ministers Mr Sam Kutesa and Mr Hilary Onek of taking bribes to influence the award of oil deals.

White Collar Crime

Ukraine

Banking

Only land plots with a cadastral number can serve as security
CMS Cameron McKenna January 26 2012
On 20 December 2011, the Parliament of Ukraine adopted the Law of Ukraine “On Amendments to several Legislative Acts of Ukraine with regards to Strengthening of Control over the Conclusion of Pledge Agreements and Mortgage Agreements and the Title to Them” No. 4188-VI (the “Law”).

Commercial Property

United Arab Emirates

Banking

FSB Regional Middle East and North Africa Group meets
SNR Denton January 27 2012
The inaugural meeting of the FSB Regional Consultative Group for the Middle East and North Africa took place in Abu Dhabi.

Capital Markets

Company & Commercial

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Is Dubai the "great comeback kid"?
Stephenson Harwood January 25 2012
The bigger they come, the harder they fall - there was certainly no escaping the schadenfreude when Dubai fell victim to its grandiose ambition in 2009; "The dunes will reclaim the soaring folly of Dubai," wrote the UK commentator Simon Jenkins, summoning the vision of a ghostly glassy ruin in the desert.

Employment & Labor

Introducing part-time work to the UAE – part-time work permits
Eversheds January 23 2012
Historically, there has been no concept of part-time work in the UAE private sector.

Energy & Natural Resources

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Environment

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

Litigation

How effective is the decision by the Dubai International Financial Centre to widen the jurisdiction of its courts?
SNR Denton January 17 2012
The Dubai International Financial Centre (DIFC) is a free zone located in the heart of Dubai that has entirely separate civil law, generally based on English common law, and its own courts (DIFC Courts) that also operate on a model very similar to common law courts (particularly the English Commercial Court).

Public

Trade & Customs

Middle East and Turkey update - December 2011
SNR Denton January 30 2012
This Update is produced on a monthly basis.

United Kingdom

Arbitration

Courts can enforce declaratory arbitral award
Clifford Chance LLP January 26 2012
The fallout from the European Court of Justice decision in West Tankers (The Front Comor) continues as parties strive to navigate around the English courts' inability to restrain proceedings in other EU member states brought in breach of an arbitration agreement.

They think it's all over - it isn't now: mediated settlement agreements and mediators in the firing line
Wragge & Co LLP January 18 2012
Simply because a settlement is achieved at mediation does not mean that it cannot be challenged.

CN Associates (a firm) v Holbeton Limited [2011] EWHC 43 (TCC) and Durham County Council v Jeremy Kendall (t/a HLB Architects) [2011] EWHC 780 (TCC)
Wedlake Bell January 17 2012
These two cases are a useful reminder that where you disagree that the adjudicator has jurisdiction to decide a dispute, you should expressly reserve your position in both correspondence and your submissions, and also regularly maintain and state the reservations that you are relying on throughout the adjudication to allow these reservations to be pursued in any later challenge in the Courts to the adjudicator's jurisdiction.

Alternative dispute resolution e-bulletin
Herbert Smith LLP January 17 2012
Welcome to our first ADR e-bulletin of 2012.

Profile Projects Ltd v Elmwood (Glasgow) Ltd [2011] ScotCS CSOH 64
Wedlake Bell January 17 2012
The Scottish Court of Session (somewhat surprisingly) followed the earlier decision of Bridgeway v Tolent rather than the more recent Yuanda v WW Gear case and held that the clause requiring the referring party to pay the whole costs of adjudication, including both parties’ costs and the adjudicators’ expenses did not fall foul of section 108 of the Construction Act.

Asset Finance

Platform
Brodies LLP January 12 2012
The market having survived 2011 our attention now turns to 2012 and what the coming year has in store for the banking sector.

Banking

FSA steps up UK enforcement of market abuse: what "should you" know?
Morrison & Foerster LLP January 30 2012
On 25 January 2012 the UK Financial Services Authority (the FSA) sent a strong message to financial markets participants by fining hedge fund manager David Einhorn and his fund, Greenlight Capital (Greenlight), with a £7.2m fine for market abuse.

Treasury publishes financial services bill
SNR Denton January 30 2012
The Financial Services Bill (FS Bill) was introduced in the House of Commons on 26 January.

Reforms to the financial services regulatory architecture edge one step closer
Herbert Smith LLP January 30 2012
The introduction of the Financial Services Bill to Parliament last Friday is a significant milestone in the reform of the financial services regulatory architecture.

The revised Financial Services Bill introduced to Parliament
CMS Cameron McKenna January 30 2012
The Financial Services Bill was introduced to Parliament on 26 January 2012 and has now been published.

Payments Council happy at guarantee card closure
SNR Denton January 27 2012
The Payments Council has confirmed it sees no reason to reinstate the Cheque Guarantee Card Scheme following its decision to allow cheques to stay.

Banking litigation review 2011
Herbert Smith LLP January 27 2012
There have been a number of decisions involving financial institutions which have concerned the principles of contractual interpretation.

Consumer credit regime moving to FCA control: new Financial Services Bill
Morton Fraser January 27 2012
The Financial Services Bill was introduced to Parliament on 26 January 2012.

Parliament publishes report on BoE accountability
SNR Denton January 27 2012
The Treasury Committee has published a report on the Bank of England’s memorandum on its accountability.

FSA speaks on FCA
SNR Denton January 27 2012
Martin Wheatley spoke on his vision for the FCA.

Common sense equity prevails
Mills & Reeve LLP January 25 2012
In a recent High Court decision of His Honour Judge Cooke in AIB Group (UK) PLC and Mark Redler & Co (23 January 2012), the court upheld a claim by a lender for breach of trust and equitable compensation.

Banking update: report and review on recent cases and issues
Wragge & Co LLP January 25 2012
The court has reaffirmed that comparable sales evidence is the best evidence when determining the retrospective valuation of a property.

ISAs: HMRC’s ISA Bulletin No. 41
Dechert LLP January 18 2012
HMRC have recently issued ISA Bulletin No. 41.

Court of Appeal decision in Lehman Brothers application published
Dechert LLP January 18 2012
The Court of Appeal’s judgment in Pearson and others v Lehman Brothers Finance SA [2011] EWCA Civ 1544 was published in late December 2011.

Discussion paper on instruments of macro-prudential policy
Dechert LLP January 18 2012
In late December 2011, the Bank of England (the “Bank”) published a discussion paper on instruments of macro-prudential policy.

Draft Financial Services Bill
Dechert LLP January 18 2012
In late December 2011, the Joint Committee on the draft Financial Services Bill 2011-12 (“FS Bill”) published its report on the FS Bill.

Platform
Brodies LLP January 12 2012
The market having survived 2011 our attention now turns to 2012 and what the coming year has in store for the banking sector.

Kilting corner
Brodies LLP January 12 2012
The fallout from the Icelandic banking saga continues, with an important recent ruling coming out of the Inner House of the Court of Session in Edinburgh, broadly the equivalent of an English Court of Appeal judgment.

Capital Markets

SEC brings case against Indiana manufacturer and eight executives and accountants for accounting fraud at English subsidiary
Porter Wright Morris & Arthur LLP January 31 2012
On Monday, January 30, 2012, the SEC filed two lawsuits in federal court in Indiana and commenced two administrative proceedings stemming from an accounting fraud scheme at the Thornton Precision Components ("TPC"), which is the Sheffield, England subsidiary of Symmetry Medical Inc. ("Symmetry"), an Indiana-based manufacturer of medical devices and aerospace products.

Treasury publishes financial services bill
SNR Denton January 30 2012
The Financial Services Bill (FS Bill) was introduced in the House of Commons on 26 January.

Prospectus Directive: implementation of outstanding amending provisions
Squire Sanders January 30 2012
On 13 December 2011, the Financial Services Authority (‘FSA’) and the Treasury published a joint consultation paper setting out how the UK intends to implement the remaining provisions of the EU Directive amending the Prospectus Directive and the Transparency Directive (2010/73/EU) (‘the Amending Directive’), due to be implemented in member states by 1 July 2012.

Financial reports: FRC guidance for directors on responding to increased country and currency risk
Squire Sanders January 30 2012
In light of the current global economic situation, the Financial Reporting Council (‘FRC’) published on 17 January 2012 an Update for Directors of Listed Companies to help directors respond to increased country and currency risk in their companies’ annual and half-yearly financial reports in the coming months.

Market abuse regime: the UK government postpones the expiry of UK super-equivalent prohibitions
Squire Sanders January 30 2012
The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2011 (SI 2011/2928), which came into force on 31 December 2011, extend until 31 December 2014 the life of the following market abuse provisions of the Financial Services and Markets Act 2000.

Corporate governance: the FRC reports on developments in the implementation of the UK Corporate Governance Code and the Stewardship Code
Squire Sanders January 30 2012
On 14 December 2011, the Financial Reporting Council (‘FRC’) published its first report analysing the implementation of the UK Corporate Governance Code (‘the Code’), which was revised in 2010, and the Stewardship Code which was introduced in the same year.

FTSE UK Index Series: changes to minimum free float eligibility requirement effective 1 January 2012
Squire Sanders January 30 2012
On 14 December 2011, the FTSE Group (‘FTSE’) announced that the Ground Rules of the UK Index Series would be revised with effect from 1 January 2012 to introduce a new minimum free float eligibility requirement of 25% for UK incorporated companies.

FSA fines for insider dealing
SNR Denton January 27 2012
FSA has fined David Einhorn, owner of US hedge fund Greenlight Capital Inc, and his fund £7.2 million for market abuse.

David Einhorn and Greenlight Capital Inc. fined £7.2m for insider trading
Katten Muchin Rosenman LLP January 27 2012
On January 25, the UK Financial Services Authority (FSA) announced the imposition of penalties totaling £7.3M (approximately $11.5M) on David Einhorn and Greenlight Capital Inc. (Greenlight), for market abuse in June 2009 in relation to trading in equities of Punch Taverns plc (Punch).

FSA issues discussion paper on implementing AIFMD
Katten Muchin Rosenman LLP January 27 2012
On January 23, the UK Financial Services Authority (FSA) published a discussion paper (DP12/1) on the implementation of the EU Alternative Investment Fund Managers Directive (2011/61/EU) (AIFMD).

FSA makes more new rules
SNR Denton January 27 2012
At its Board Meeting on 19 January, FSA made several further new rules, in addition to the CASS changes.

FSA consults on strategy trades
SNR Denton January 27 2012
FSA has published a guidance consultation on reporting strategy trades.

ECON debates CRA changes
SNR Denton January 27 2012
The Economic and Monetary Affairs Committee has started its debate on changes to laws relating to credit rating agencies.

Consumer credit regime moving to FCA control: new Financial Services Bill
Morton Fraser January 27 2012
The Financial Services Bill was introduced to Parliament on 26 January 2012.

FSA makes new CASS rules
SNR Denton January 27 2012
FSA has made new rules which make changes to its Client Assets Sourcebook in respect of custody liens.

BBA responds on legacy charging
SNR Denton January 27 2012
BBA’s response to FSA’s consultation on treatment of legacy assets in the context of Retail Distribution Review adviser charging says firms must be clear on the purpose of trail commission.

IMA comments on AIFMD DP
SNR Denton January 27 2012
IMA, commenting on FSA’s DP on AIFMD implementation, said that many UK-based unauthorised unit trusts are likely to fall within AIFMD scope as well as the funds FSA has identified.

FSA speaks on FCA
SNR Denton January 27 2012
Martin Wheatley spoke on his vision for the FCA.

FSA publishes AIFMD DP
SNR Denton January 27 2012
FSA has published a Discussion Paper setting out its provisional thinking on some aspects of implementation of the Alternative Investment Fund Managers Directive.

Alternative indicators
Stephenson Harwood January 25 2012
Skirt hemlines have been a popular gauge of confidence ever since the 1920s: tending to rise when times are good and fall when they're bad.

Government listed company pay proposals
CMS Cameron McKenna January 24 2012
In a suddenly arranged Parliamentary announcement, the Government has said that it is to press ahead with giving shareholders in listed companies extra powers.

Financial Reporting Council publishes update for directors of UK listed companies on responding to increased country and currency risk in financial reports
Dechert LLP January 23 2012
The Financial Reporting Council, prompted by the current economic uncertainties facing countries around the world, published on 17 January 2012 an update for directors of UK listed companies on responding to increased country and currency risk in financial reports.

Protected cell company regime – FSA rule changes
Dechert LLP January 18 2012
The FSA is now publishing the Handbook Instrument containing rules relating to the introduction of the protected cell regime.

Commercial Property

Court of Appeal rejects appeal against the removal of competition claims from claim form
Mayer Brown LLP January 31 2012
On 27 January 2012, the Court of Appeal rejected an appeal by Humber Oil Terminals Trustee Ltd against the striking out of a competition claim from its particulars of claim in a tenancy dispute.

Community Infrastructure Levy and 106 obligations
Mills & Reeve LLP January 31 2012
CIL came through in the Planning Act 2008, although it is the CIL Regulations where most of the law is found.

The year of the Community Infrastructure Levy
SNR Denton January 31 2012
Debates over viability and value capture are an inevitable part of planning in a cool economic climate.

Regeneration: the government's response to the select committee report
Mills & Reeve LLP January 31 2012
The Government has recently published its response to the critical House of Commons CLG Report on regeneration.

316: IPC and NID start to plan handover arrangements
Bircham Dyson Bell January 30 2012
This is entry number 316, published on 30 January 2012, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime.

Duty to cooperate and core strategies already submitted
Mills & Reeve LLP January 30 2012
A very interesting question has cropped up at the examination into Bath and North East Somerset's (BATHNES) Core Strategy (CS).

Occupancy restriction remains after first obligation appeal
Brodies LLP January 30 2012
The first ever determination has been made by a reporter in a planning obligation discharge appeal.

Your kids are for life, not just for Christmas
Morton Fraser January 30 2012
These are really difficult times for first-time buyers trying to get onto the property ladder.

Service charge - comply with the lease terms before demanding payment
Penningtons Solicitors LLP January 27 2012
It is important to read the terms of the service charge provision before demanding payment and certainly before issuing proceedings to recover unpaid sums.

Community infrastructure levy - differential rates for residential development
Mills & Reeve LLP January 27 2012
Following Beverley’s blog Bristol City Council’s CIL viability study has been brought to my attention, particularly for its recommendations for setting CIL for student housing schemes at a markedly different rate to that for ordinary residential schemes.

Stop press - tenant insolvency - don't accept administrators' proposals
Penningtons Solicitors LLP January 27 2012
As this note goes to press, there is a fresh round of tenant insolvencies.

Tenants beware – a tough decision on a break clause
Pitmans LLP January 26 2012
In the recent case of Avocet Industrial Estates LLP v Merol and another [2011] EWHC 3422(CH) the High Court has decided that a tenant did not validly exercise a break clause in a lease which was conditional on there being no outstanding payments at the break date.

EDI Central Limited v. National Car Parks Limited, 20 January 2012
Morton Fraser January 26 2012
Inner House case considering an agreement between NCP and EDI for a development at Castle Terrace car park in Edinburgh.

There's more than one type of consent for land developments
Morton Fraser January 26 2012
Whilst the majority of us are familiar with the need to seek local authority to consent to development, usually in the form of planning permissions and building warrants, the need for the consent of the Scottish Environmental Protection Agency (SEPA) is not quite so well-known.

Landlord and tenant - conditions for renewal of tenancies under the Landlord and Tenant Act 1954
Wragge & Co LLP January 25 2012
In order to attract security of tenure, the premises must be occupied by the tenant for the purposes of a business carried on by him.

Contract - can a buyer terminate a contract post-completion where a seller is in breach?
Wragge & Co LLP January 25 2012
The usual remedy for a breach of contract is damages payable by the defaulting party.

Adoption of sewers and sustainable drainage systems
Wragge & Co LLP January 25 2012
There is to be a further transfer of private sewers and lateral drains to the statutory water and sewerage companies.

Landlord and tenant - relief from forfeiture
Wragge & Co LLP January 25 2012
If a lease is forfeited, the tenant may wish to apply for relief from forfeiture.

Debt judgment: making recoveries from judgment debtors owning property
Kingsley Napley January 25 2012
It is a well known maxim in litigation that you can only recover as much money from a judgment debtor as the total of their assets.

High Speed 2 - speeding ahead
Wragge & Co LLP January 25 2012
On 10 January 2012, the Government announced that it would be proceeding with the High Speed 2 rail link from London to Birmingham.

National Planning Policy Framework
Wragge & Co LLP January 25 2012
The Government published the draft National Planning Policy Framework (NPPF) in July 2011, with a view to replacing the existing wealth of guidance and information with around 50 pages of simple clearly written policy.

Landlord and tenant - break options
Wragge & Co LLP January 25 2012
A lease may require the landlord to have actually paid the insurance premium for the property before it can recover the cost from the tenant.

Contract - can a letter form a binding contract for the sale of land?
Wragge & Co LLP January 25 2012
A contract for the sale of land must incorporate all the terms which the parties have expressly agreed in one document.

Carbon reduction commitment - timing of first allowance sale
Wragge & Co LLP January 25 2012
Regulations have been laid before Parliament which set out when allowances will be available for purchase in relation to the introductory phase of the CRC Energy Efficiency Scheme.

London property: safe as houses?
Stephenson Harwood January 25 2012
Despite being blessed with a mayor who is determined to promote the capital as 'The Greatest City on Earth', Londoners are notoriously downbeat when it comes to assessing the value of their own city in the eyes of others.

Scottish Government consultation on empty homes- new challenges, new ideas
Morton Fraser January 24 2012
To many of us who remember with fond affection the positive impact of the Empty Homes Initiative which ran from 1996 to 2000/2001 the Scottish Government’s proposed Consultation on Empty Homes will be particularly welcomed. Against a background of funding constraints, the Scottish Government’s proposals to assist Councils in bringing private sector empty homes back into use is sensible and imaginative.

Scottish Government proposed Consultation on Empty Homes
Morton Fraser January 24 2012
To many us who remember with fond affection the positive impact of the Empty Homes Initiative which ran from 1996 to 2000/2001 the Scottish Government’s proposed launch of a Consultation on Empty Homes will be particularly welcomed.

Incredible but true
Blake Lapthorn January 23 2012
Christmas came early for alleged trespassers in the case of Benesco Charity Ltd v Kanj decided in December 2011.

Long Leases (Scotland) Bill
Morton Fraser January 20 2012
The Long Leases (Scotland) Bill was introduced to the Scottish Parliament on 12 January.

Goodwill – capital or revenue?
DLA Cliffe Dekker Hofmeyr January 20 2012
A United Kingdom court (Upper Tribunal – Tax and Chancery Chamber) recently handed down the judgment of Countrywide Estate Agents FS Limited v Commissioner for Her Majesty’s Revenue and Customs [2011 UKUTS 470 (TCC)].

The Value Added Tax (Land Exemption) Order 2012
Morton Fraser January 20 2012
Order amending Note (14) (definition of a seasonal pitch) to Group 1 (land) of Schedule 9 (exemptions) to the Value Added Tax Act 1994 (“Group 1”) with effect from 1st March 2012.

The Private Rented Housing (Scotland) Act 2011 (Commencement No. 2 and Transitional Provision) Order 2012
Morton Fraser January 20 2012
Order bringing certain provisions of the Private Rented Housing (Scotland) Act 2011 including provisions amending the Houses in Multiple Occupation licensing regime in Part 5 of the Housing (Scotland) Act 2006.

Selling public land? Do the new Crichel Down rules apply?
Morton Fraser January 20 2012
The Crichel Down rules state that when a public sector organisation disposes of surplus land that was originally purchased by a public body, by or under threat of compulsion, it first has to be offered back to the original owner.

George Wimpey v Alan Henderson, 11 October 2011
Morton Fraser January 20 2012
Sheriff court case in which Wimpey sought damages from Mr Henderson in respect of his failure to pay the purchase price for subjects at Ferry Village in Renfrew.

East Dunbartonshire Council v Bett Homes Limited formerly Gladedale (Northern) Division Limited, 20 December 2011
Morton Fraser January 20 2012
Inner House case concerning tripartite agreement between East Dunbartonshire Council, Bett Homes and Glasgow University.

Company & Commercial

Vote no to pay -- the UK's search for the 'magic bullet' & ... the perils of the scatter gun approach ...
Gibson Dunn & Crutcher LLP January 31 2012
The Business Secretary of the British government, Vince Cable, announced a week ago a package of controversial plans in a bid to transform UK executive pay culture.

Regulation in the City
Eversheds January 31 2012
Businesses in the City are concerned about the impact of regulatory uncertainty on their business operations and more than half also believe that EU policy is damaging London’s economic position.

Company directors' general duties under the English Companies Act 2006
Pillsbury Winthrop Shaw Pittman LLP January 30 2012
The recent decision of the Court of Appeal for England and Wales in Towers v. Premier Waste Management Limited [2011] EWCA Civ 923, discussed in our recent article, serves as a timely reminder to directors of English companies of the importance of understanding and observing the duties owed to a company of which they are a director.

English Court of Appeal orders rectification of contract for common mistake
Allen & Gledhill LLP January 27 2012
In Daventry District Council v Daventry & District Housing Limited, the English Court of Appeal, by a majority of two (Toulson LJ and Neuberger MR) to one (Etherton LJ), allowed a contract to be rectified on the basis of common mistake.

Commons debates executive pay
SNR Denton January 27 2012
Vince Cable has explained in the House of Commons the reasons for the Government’s proposals on executive pay.

On your marks for the Olympics
Duane Morris LLP January 25 2012
With the Olympics now a little more than six months away, most businesses are fine-tuning their contingency plans.

The end of the superstar?
Stephenson Harwood January 25 2012
Compared with the chaotic manoeuvrings on boards elsewhere, the recent CEO succession at IBM was a model of smooth execution.

Misunderstandings during negotiations
SNR Denton January 25 2012
In Daventry District Council v. Daventry & District Housing Ltd [2011] EWCA Civ 1153, the Court of Appeal rectified an agreement for common mistake even though one party arguably did not intend to enter a contract on those rectified terms.

Acolyte decision shines a BacLite on earn-out clauses
Edwards Wildman Palmer LLP January 25 2012
A recent UK High Court decision (Porton Capital Technology Funds and others v 3M) relating to the sale of Acolyte Biomedica Limited has provided UK M&A practitioners with a valuable insight into how the courts interpret the future obligations of the parties under an earn-out clause in a share purchase agreement.

The Cream Holdings case on expert determination of fair value
A&L Goodbody January 24 2012
The long-running saga of Cream Holdings & Ors v Stuart Davenport, culminating in a second UK Court of Appeal decision recently, tells a cautionary tale which should be of interest to anyone involved in drafting and negotiating provisions on the expert determination of the exit price of shares in shareholder agreements and articles of association.

R3 eastern regional meeting
Mills & Reeve LLP January 24 2012
Common to all appointments is the need to check whether the appointment is valid in accordance with the Articles of Association.

Reggae Reggae Sauce breach of confidence – it’s not grandma’s but it is Levi Roots’
RPC January 24 2012
“Levi Roots” (otherwise known as Keith Graham) has won his High Court battle against claims of breach of contract and breach of confidence in relation to his Reggae Reggae Sauce, but at the cost of revealing that the sauce is not based on a secret family recipe.

Jones v Kaney [2011] UKSC 13
Wedlake Bell January 17 2012
The Supreme Court held by a majority that experts' immunity from a claim where they have been negligent and/or in breach of contract in carrying out their services as experts should be abolished.

Jet2.com Ltd v Blackpool Airport Ltd [2011] EWHC 1529 (Comm)
Wedlake Bell January 17 2012
In this case it was held that an obligation on a party to use "all reasonable endeavours" could include an obligation to act against its own commercial interests.

Golden Ocean Group Ltd. v Salgaocar Mining Industries Pvt Ltd & Anor [2011] EWHC 56 (Comm)
Wedlake Bell January 17 2012
In this shipping case the Court held that negotiations by email and related documents could arguably amount to a guarantee for the purposes of the Statute of Frauds 1677, even though no hard copy of the final form of guarantee was signed.

The devil is in the detail: contractual provisions and limitations on service of notices and proceedings
Wragge & Co LLP January 16 2012
On 2 April 2008, ENER-G Holdings plc completed the acquisition of a company from a Mr Hormell, paying (in the judge's words) "several million pounds" for the shares.

Serious Fraud Office targets shareholders who receive the proceeds of crime
Wragge & Co LLP January 13 2012
Following action taken by the director of the Serious Fraud Office (SFO) in the High Court, an order has been made for Mabey Engineering (Holdings) Ltd to pay more than £130,000 in recognition of sums it received through share dividends derived from contracts won through unlawful conduct.

Competition

CAT requires in-house lawyer to give same confidentiality undertaking as external lawyer
Mayer Brown LLP January 31 2012
On 26 January 2012, the Competition Appeal Tribunal (“CAT”) ruled that an in-house lawyer for Everything Everywhere was required to give the same form of confidentiality undertaking as the external lawyers in the appeal by Telefonica against a determination on wholesale voice call termination charges.

Ofcom determination regarding termination charges on 080, 0845 and 0870 numbers
Baker & McKenzie January 31 2012
In 2010, Ofcom made determinations in relation to disputes between BT and several mobile operators.

Construction

JCT: the effect of delay
Mills & Reeve LLP January 31 2012
What happens when there is delay to the Completion Date under JCT 2011?

Why wouldn't a sub-contractor have to progress works regularly and diligently?
Mills & Reeve LLP January 24 2012
The courts recently held that there was no implied term in a contractor's contract with its sub-contractor that the sub-contractor had to progress the works regularly and diligently.

Harrison & Ors v Shepherd Homes Ltd & Ors [2011] EWHC 1811 (TCC)
Wedlake Bell January 17 2012
Defects to foundations had arisen across an entire development of 94 houses.

Costello and another v MacDonald and others [2011] EWCA Civ 930
Wedlake Bell January 17 2012
The building contractor in this case had entered into a building contract with an SPV (Special Purpose Vehicle company).

Copyrights

Education charity - not an 'innocent infringer' re website photographs
Mills & Reeve LLP February 1 2012
A recent judgement of the Patents County Court has established that as soon as a party believes that some sort of copyright subsists in an artistic work, the defence of being an "innocent infringer" is no longer available, no matter how honest a party's actions are.

Michael Mitchell v British Broadcasting Corporation [2011] EWPCC 42 (England, Patents County Court, 21 December 2011)
WongPartnership January 31 2012
This case reminds us that to constitute copyright infringement, it is not necessary that copying has to be done consciously.

No innocent infringer: Hoffman v Drug Abuse Resistance Education (UK) Ltd [2012] EWPCC 2
Blake Lapthorn January 30 2012
The Patents County Court ruled on the use of 19 photographs on a drug charity's website.

Developments in UK copyright law
Baker & McKenzie January 25 2012
The UK-IPO recently launched a "Consultation to change the UK's copyright system", with the intention of making proposals for legislation in Spring 2012.

Big news for Internet Service Providers
DMH Stallard LLP January 24 2012
On 28 July 2011 in the case of Twentieth Century Fox Film Corporation and Anor v British Telecom [2011] EWHC 1981 (CH), and for the first time in UK history, the High Court granted an injunction against an Internet Service Provider (ISP).

Corporate Finance/M&A

Corporate Immigration

Important information about London 2012 released by the UKBA
Penningtons Solicitors LLP January 30 2012
Important information about the London 2012 Olympic and Paralympic Games has been published online by the UKBA.

Visa application services suspended in a number of countries
Kingsley Napley January 27 2012
Due to IT maintenance taking place on 3 February, it will not be possible to submit visa applications via the Visa Application Centres in a number of countries.

Special visitor concession for those attending the Olympic Games
Kingsley Napley January 27 2012
Certain individuals who have been accredited and received an Accreditation Card for the 2012 Olympic or Paralympic Games from the London Organising Committee of the Olympic Games and Paralympic Games may enter the UK as a special visitor in order to attend the events, without a visa.

Online services to replace phone lines for postal biometric appointments
Kingsley Napley January 27 2012
From 1 February 2012 postal applicants will need to book biometric appointments online.

Abolition of Tier 1 Post Study route
Kingsley Napley January 27 2012
This is just a reminder that the Tier 1 Post Study route will close in April 2012 to all new applicants.

Corporate Tax

A voyage of discovery: two recent Court of Appeal decisions
RPC January 30 2012
In December of last year, two differently constituted panels of the Court of Appeal handed down important judgments on the discovery provisions contained in sections 29 and 30B Taxes Management Act 1970 (‘TMA 1970′).

Would your tax return stand up to public scrutiny?
Morton Fraser January 27 2012
Mitt Romney, the US Republican Party 2012 Presidential Nomination hopeful, has found himself in hot water over recent claims that he has paid disproportionately little tax on his income and capital gains, which are said to exceed $40m (£26m) over the last two years.

HMRC clarifies what can constitutue an "arrangement"
Baker & McKenzie January 26 2012
HMRC has updated its technical page in the Registered Pension Schemes Manual setting out what an "arrangement" is for the purposes of the tax rules for registered pension schemes.

HMRC publishes guidance on "fixed protection" in relation to lifetime allowance
Baker & McKenzie January 26 2012
The lifetime allowance is to be reduced from £1.8 million to £1.5 million with effect from 6 April 2012.

VAT cost sharing exemption
Mills & Reeve LLP January 26 2012
The latest funding letter from BIS to HEFCE confirms that arrangements for a VAT cost sharing exemption have been agreed with HMRC.

High Court confirms that pension reciprocation plans are invalid
Baker & McKenzie January 26 2012
The High Court has held, in Dalriada Trustees Limited v Faulds and others, that pension reciprocation plans, which sought to allow early access to pensions savings by giving scheme members the chance to borrow from members of other pension schemes, are invalid and that no further loan payments can be made under such PRPs.

Weight Watchers leaders are employees for tax purposes
Bircham Dyson Bell January 25 2012
The guidelines for identifying whether a relationship is one of employment or selfemployment are well-established, dating from Ready Mixed Concrete (SE) Ltd v Minister of Pensions and National Insurance in 1968.

Transfer pricing in 2012 - a focus on intangibles and offshore structures
CMS Cameron McKenna January 24 2012
In the transfer pricing arena, we can expect wider-reaching audit activity from HMRC, increased attention to intangible ownership worldwide, and a focus on internal IP management in the light of new UK Patent Box legislation.

UK court rules on independent nature of consultants
DLA Cliffe Dekker Hofmeyr January 13 2012
You’ve seen them at large department stores and duty free shops – the individuals promoting and selling an endless array of beauty products and fragrances to fuel our endless pursuit of smelling better, looking younger and living longer.

C-591/10 Littlewoods Retail Ltd & others – opinion
Dorsey & Whitney LLP January 12 2012
Advocate General Trestenjak today released her Opinion in C-591/10 Littlewoods Retail Ltd and Others.

Derivatives

E-commerce

Employee Benefits & Pensions

Pensions Regulator issues another FSD
Mayer Brown LLP January 30 2012
The Pensions Regulator has issued a financial support direction (“FSD”) to ITV plc (“ITV”) and four of its subsidiaries in connection with the Boxclever Group Pension Scheme (the “Scheme”).

Pensions Regulator sets out plans for its 2012 communications with DB schemes
Baker & McKenzie January 26 2012
The Pensions Regulator has provided more detail of its plans for communicating on defined benefit issues during 2012.

DWP consulting on possible method for equalising guaranteed minimum pensions
Baker & McKenzie January 26 2012
The Department for Work and Pensions is having to amend current legislation to remove the need to identify an opposite sex comparator when equalising guaranteed minimum pensions.

Clarification of auto-enrolment start dates – new timetable
Morton Fraser January 26 2012
I mentioned in my previous blog - Pension Changes Delay – that the Government were delaying the start date for small businesses and that a new timetable was to be published in January.

Employer debt regulations amendments introduce flexible apportionment arrangements
MacRoberts LLP January 26 2012
Further to our previous MacRoberts Pensions & Employee Benefits e-update, dated 10 October 2011, we can confirm that the Occupational Pension Schemes (Employer Debt and Miscellaneous Amendments) Regulations 2011 ("the Amendment Regulations") are finally due to come into force tomorrow, 27 January 2012.

Practical flexibility or cause for concern? – the new Type A Contingent Asset requirements 2012/2013
Pitmans LLP January 25 2012
In recent years Contingent Assets have become an increasingly common method by which sponsoring employers have managed the cost of occupational pension schemes, the availability of a contingent asset to a scheme’s trustees usually resulting in a reduction in the Pension Protection Fund levy, a cut in the funding level a scheme needs to aim for or both.

GMP equalisation – the answer?
Mayer Brown LLP January 25 2012
The Government has published a consultation, which closes in April, on a possible methodology for the equalisation of guaranteed minimum pensions (“GMPs”).

Government confirms GMP equalisation and consults on legislative changes
Blake Lapthorn January 24 2012
You may have already read about the thorny question of GMP equalisation.

US bankruptcy automatic stay thwarts UK proceedings by the Pension Regulator
SNR Denton January 23 2012
On December 29, 2011, the US Court of Appeals for the Third Circuit issued an opinion in the chapter 11 bankruptcy case In re Nortel Networks, Inc., holding that the "automatic stay" on creditor collection actions outside the bankruptcy applied to prevent the UK Pension Protection Fund and the Trustee of the UK Nortel Pension Plan from participating in UK pensions proceedings initiated by the UK Pensions Regulator.

Employment & Labor

Uk employment law changes for 2012
Bryan Cave LLP February 1 2012
This client briefing sets out the key changes to UK employment law taking place from February 2012.

Employment law agenda 2012: key developments to have on your radar
Mayer Brown LLP January 31 2012
2012 is set to bring with it some important changes to UK employment law.

When does Proceeds of Crime apply to health and safety?
Morton Fraser January 31 2012
The Sunday Times recently featured an article suggesting that the Lord Advocate, Frank Mulholland is exploring the possibility of using the Proceeds of Crime Act 2002 to seize profits secured by employers at the expense of health and safety.

Damages (Asbestos-Related Conditions) Bill (Northern Ireland) 2010
Eversheds January 27 2012
The Northern Irish Assembly has passed the Damages (Asbestos-Related Conditions) Bill which restores the right to claim compensation for plural plaques caused by asbestos.

Trainee unable to claim unfair dismissal
Manches LLP January 27 2012
In GE Caledonian Ltd v McCandliss the EAT held that a former apprentice who had been sponsored by the company to undertake a degree had not been dismissed when the company refused to employ him following his withdrawal from the course.

Commercial Court in London comments on "spiking" mesothelioma claims
Edwards Wildman Palmer LLP January 27 2012
Recent comments by a UK Commercial Court judge indicate that policyholders are entitled to "spike" their entire liability for a mesothelioma claim into any one year of employers' liability (EL) cover.

Not far from the mobbing crowd - bullying in the workplace
Squire Sanders January 27 2012
For reasons so obscure that they now escape me, I found myself the other day looking at the results of a 2008 survey on workplace bullying in Poland.

Managing your workforce: getting your business in shape for the Olympic Games 2012
Kingsley Napley January 27 2012
With only 6 months to go until the start of the Olympic Games in London this summer, how advanced are your plans for dealing with the impact of the Games on your workforce?

Assessing the impact of pre-existing back conditions on future damages.
Eversheds January 27 2012
The Claimant suffered a prolapsed disc when moving heavy equipment in the course of his employment.

Minister confirms timetable for employment law changes
Mills & Reeve LLP January 26 2012
The Government’s current timetable for implementing changes to the way workplace disputes are handled has been revealed in a written Parliamentary answer last week.

Changes to RIDDOR reporting due to come into effect in April
Brodies LLP January 26 2012
The proposed changes to RIDDOR reporting which Laura blogged about in September are due to come into effect from 6 April 2012.

Record collective award for Woolworths workers
Mills & Reeve LLP January 26 2012
Following a similar decision in the Northern Ireland industrial tribunal last year, Woolworths workers in England, Wales and Scotland who were made redundant at the end of 2008 have been awarded 60-day protective awards.

Recruitment condition of recent paid work was sex discriminatory
Squire Sanders January 26 2012
A job candidate rejected because she did not have recent paid work experience after taking time out to look after her children has been awarded compensation by an Employment Tribunal in Northern Ireland (Crilly v Ballymagroarty Hazelbank Community Partnership).

Howes Percival warns of serious financial consequences of redundancy mismanagement
Howes Percival LLP January 26 2012
As the UK economy is set to stagnate in the first quarter of this year, many companies continue to be faced with the prospect of cost-cutting and restructuring in a bid to weather the storm.

Different treatment of employees on dismissal may be justified
Bircham Dyson Bell January 25 2012
It is well established in case law that disparity of treatment between employees who have misbehaved in the same way may be grounds for unfair dismissal.

RIDDOR reporting
Morton Fraser January 25 2012
Subject to Parliamentary approval the RIDDOR regulations will change on 6 April 2012.

Workers must take or request holiday to be entitled to holiday pay
Bircham Dyson Bell January 25 2012
The EAT has held that, contrary to the decisions in List Design v Douglas and Canada Life Ltd v Gray, workers are only entitled to statutory holiday pay under the Working Time Regulations if they take holiday or give notice that they wish to take holiday.

Wearing a poppy to work is not a philosophical belief
Bircham Dyson Bell January 25 2012
In Lisk v Shield Guardian Co Ltd and others an Employment Tribunal has held that an employee’s belief that “we should pay our respects to those who have given their lives for us by wearing a poppy from All Souls’ Day on 2 November to Remembrance Sunday” did not amount to a philosophical belief capable of protection under the Equality Act 2010.

Changes to employment law announced
Bircham Dyson Bell January 25 2012
The Government has announced many fundamental changes to employment law, although it has not yet published full details of how the changes will operate in practice.

Exercise of discretion in awarding costs
Bircham Dyson Bell January 25 2012
An employment tribunal has discretion to award costs where a party has acted vexatiously, abusively, disruptively or unreasonably, and the tribunal considers that it would be appropriate.

You are fired
Stephenson Harwood January 25 2012
However the recent firing of Yahoo chief Carol Bartz - by a legally scripted announcement over the phone - sparked a huge debate on the etiquette of sacking, with some commentators declaring that, whatever Bartz's managerial faults, she did not deserve such shabby treatment.

Out of time equal pay tribunal claims can proceed in the High Court
Bircham Dyson Bell January 25 2012
Equal pay claims can be brought in the employment tribunal (subject to a six month time limit) or as a contract claim in the courts for breach of the implied contractual equality clause (subject to a limitation period of six years).

Change of client prevented transfer from being a service provision change under TUPE
DMH Stallard LLP January 24 2012
In Hunter v McCarrick, the Employment Appeal Tribunal held that there is no service provision change under regulation 3(1)(b) of TUPE 2006, where there is not only a change of contractor but also a change of client.

Compensation for unfair dismissal should be "grossed up" before statutory cap is applied
DMH Stallard LLP January 24 2012
This was an appeal to the EAT against a Tribunal’s decision to make a compensatory award for unfair dismissal of a sum approximately £20,000 above the applicable statutory cap.

TUPE and companies in administration
DMH Stallard LLP January 24 2012
In this case the Court of Appeal held that, as a general rule, administration does not fall within regulation 8(7) of TUPE 2006 (which disapplies the automatic transfer principle meaning that employees do not transfer) and instead falls within regulation 8(6) of TUPE 2006 (which is much narrower in scope and only protects a transferee against the transfer of certain liabilities to employees).

Supreme Court restricts claims for common law damages arising out of breach of a contractual disciplinary procedure
DMH Stallard LLP January 24 2012
In this case, claims by employees that they were entitled to common law damages for breaches by their employer of contractual disciplinary procedures failed.

No damages for breach of disciplinary procedure
Shepherd & Wedderburn LLP January 23 2012
If an employee raises a successful unfair dismissal complaint in an Employment Tribunal, they will be awarded a basic award (calculated based on factors such as age and length of service) and a compensatory award, which is capped, currently at £68,400.

Employee joining a competitor: the duty of fidelity and fiduciary duties
Shepherd & Wedderburn LLP January 23 2012
The High Court has considered, in the case of Customer Systems plc v Ranson and others, the circumstances in which employees owe fiduciary duties to their employers, and whether or not they are in breach of such fiduciary duties, and their duty of fidelity, when they leave to set up in competition.

Increase in Tribunal awards and limits from February 2012
Shepherd & Wedderburn LLP January 23 2012
The limits on awards in Tribunals will increase from 1 February 2012, in line with inflation.

TUPE and service provision changes
Shepherd & Wedderburn LLP January 23 2012
Two recent Employment Appeal Tribunal (EAT) cases have provided further guidance on the application of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) to service provision changes.

New rules for agency workers
Morton Fraser January 20 2012
Many public sector organisations hire agency workers regularly.

UK client briefing – January 2012
Proskauer Rose LLP January 18 2012
There have been two recent announcements from the Ministry of Justice: one about new, increased rates for statutory employment payments and Employment Tribunal awards; the other, the launching of a consultation period on fees for Employment Tribunals.

New guidance on whether a dismissal is ‘connected with’ a TUPE transfer
RPC January 11 2012
The Employment Appeal Tribunal has held that if an employee is dismissed at a time when a transfer is more than a vague possibility it will be ‘connected with’ the transfer and will be automatically unfair under the TUPE regulations.

Redundancy: vague dissatisfaction did not entitle employee to see interview notes
Blake Lapthorn January 9 2012
The Employment Appeal Tribunal (EAT) has ruled that an employee was fairly dismissed for redundancy despite the fact that the employer had taken the decision to dismiss her before she had been shown the notes of her interview for a new role.

Compensation limits revised for 2012
Blake Lapthorn January 9 2012
The increase in compensation limits for certain Employment Tribunal awards have now been confirmed.

Energy & Natural Resources

Court douses incinerator challenge
Brodies LLP January 27 2012
The Court of Session has rejected a judicial review challenge to South Lanarkshire’s heroic decision to approve the controversial Dovesdale Farm energy from waste plant.

Solar PV in the Court of Appeal: implications
Brodies LLP January 26 2012
We commented previously on the legal challenge to the Government’s proposed reduction in the feed-in tariff (FIT) for solar PV.

Have the lights finally gone out on plans to backdate solar PV fit cuts
MacRoberts LLP January 26 2012
The Department of Energy and Climate Change (DECC) has suffered its second court defeat in the ongoing dispute over plans to retrospectively cut the level of feed-in tariff (FiT) subsidy for solar PV installations.

Court of Appeal rejects government appeal against High Court finding that decision to cut GB subsidy for solar power generators was unlawful
Herbert Smith LLP January 26 2012
The Court of Appeal has rejected an appeal by the Department for Energy & Climate Change (DECC) against the High Court's decision that it acted unlawfully when proposing to cut the subsidy payable to electricity generators using small solar power systems (see our e-bulletin of 5 January 2012).

Court of Appeal reaffirms successful challenge against the Secretary of State for Energy and Climate Change
Eversheds January 26 2012
Yesterday the Court of Appeal upheld the High Court ruling concerning the successful challenge against the Secretary of State for Energy and Climate Change (“the Secretary of State”) in relation to his decision to introduce significantly reduced tariff rates for solar photovoltaic (“PV”) projects.

UK government takes further steps towards increasing nuclear energy capabilities
McDermott Will & Emery January 25 2012
The 2008 Nuclear White Paper issued by the UK Government’s Department for Business, Innovation and Skills, (which, at the time, was known as the Department of Business Enterprise & Regulatory Reform), stated that nuclear energy, in addition to other low-carbon sources, would play an increasingly important role in the future energy mix of the country.

Environment

End of consultation on abolition of regional strategies
Mills & Reeve LLP January 31 2012
Back in October 2011, the Government voluntarily published eight environmental reports considering the likely significant environmental effects of the revocation of regional strategies - one for each region.

TCPA policy statement for rural development
Mills & Reeve LLP January 25 2012
In case you have not seen this elsewhere, here's a link to the TCPA's policy statement "A Vision for Rural England".

Franchising

Employment law agenda 2012: key developments to have on your radar
Mayer Brown LLP January 31 2012
2012 is set to bring with it some important changes to UK employment law.

General Practice

ABS licensing
Mills & Reeve LLP January 30 2012
On 3 January 2012, the Solicitors Regulation Authority started accepting licensing applications for alternative business structures.

Judge wrong not to apply the decision in copley v lawn in a credit hire claim.
Eversheds January 27 2012
The Court of Appeal held a judge's decision that the Claimant had unreasonably failed to mitigate a loss in failing to accept the Defendant's offer of a replacement vehicle was wrong on the basis that he was not entitled to disregard Court of Appeal's decision in Copley notwithstanding that he disagreed with it and his doubts as to whether it was correct in the light of previous decisions by the House of Lords.

Allegation that a car in front prevented the car behind from overtaking leading to an accident
Eversheds January 27 2012
Ms Clement was driving a car behind another driven by Mr Pykett.

A car passenger could not claim under the MIB agreement if he was injured as a passenger whilst in possession of cannabis with intent to supply
Eversheds January 27 2012
The Claimant was a passenger in a vehicle driven by P which was involved in a serious accident caused by P's negligence.

Divorce: the Debrett’s Guide to Civilised Separation – a sign of the times?
Kingsley Napley January 27 2012
The rate of divorce continues to rise.

Dufosse v Melbry Events Limited 2011 CA, 14/12/2011
Eversheds January 27 2012
An event management company was in breach of its duty to a visitor when she suffered a leg injury after tripping and falling over a plastic icicle during a visit to Santa's grotto.

Apportionment of liability - cyclist running red light, motorist speeding
Eversheds January 27 2012
A collision occurred between a Defendant taxi driver and a Claimant cyclist at a traffic light controlled T-junction.

Systems of inspection in slipping claims.
Eversheds January 27 2012
The Claimant sued the Defendant for damages for personal injuries when she slipped in a restaurant on a ship operated by the Defendant.

Kicking up a stink: nuisance and the right to protest
Morton Fraser January 26 2012
The highly publicised "Occupy" movement's protest camp outside St Paul's Cathedral has been the subject of court action, the City of London v Samede and others, which has a bearing on the law of nuisance.

Divorce: the end of the Russian winter?
Kingsley Napley January 26 2012
Recent decisions (Granatino –v- Radmacher, amongst others) from our Supreme Court confirm that agreements reached between spouses about what should happen on divorce should usually be upheld.

Office of Fair Trading warn of scam
Blake Lapthorn January 24 2012
The OFT is currently trying to make people aware of an ongoing scam in which their name is taken in vain in an attempt to extort money from unsuspecting individuals.

Presence v residence
Manches LLP January 16 2012
Are we edging towards a single, universally applicable, “test” of habitual residence?

Healthcare

Safeguarding vulnerable adults in the NHS
Mills & Reeve LLP February 1 2012
This briefing note examines the increasing importance of multi agency adult safeguarding procedures in protecting adults being cared for by the NHS.

The impact of changes to freedom of information law for the health sector
Eversheds January 31 2012
There are a number of changes happening likely to have an impact on the health sector and which bodies should be aware of and plan for.

Damages for unauthorised access to medical records
RPC January 29 2012
A judge has awarded £12,500 to a man whose pre-existing personality disorder was exacerbated after his partner accessed his medical records and challenged him about his mental illness.

New food & drink guidelines for young children are announced
CMS Cameron McKenna January 25 2012
The School Food Trust – a registered charity and specialist advisor to the UK Government on school meals, children’s food and related skills – has published new guidelines relating to food and drink suitable for children under five years old.

Depression drugs cause later life concerns
Morton Fraser January 24 2012
Elderly people with dementia are more likely to suffer falls if they are given anti-depressants by care home staff, a study recently featured by the BBC news reported.

NHS promotes litigation?
Penningtons Solicitors LLP January 24 2012
The Health Secretary has banned 'no win no fee' claims organisations and lawyers from advertising in hospitals.

Guidelines for the level of damages awarded for heart injuries
Kennedys January 18 2012
This case sets out the extent of damages awarded to a young man aged 21, who suffered heart and other related injuries as a result of a surgery performed on him a few days after birth.

Information Technology

UK ICO outlines the year ahead
Hunton & Williams LLP January 26 2012
On December 28, 2011, UK Information Commissioner Christopher Graham outlined the ICO’s agenda for 2012 in a post on the ICO blog, highlighting the European Commission’s proposals for reviewing the EU data protection framework, the post-legislative scrutiny process with respect to the UK Freedom of Information Act (“FOIA”) and the ICO’s Information Rights Strategy.

Data protection – Oliver Letwin signs ICO undertaking
Morton Fraser January 20 2012
In an unsurprising development following media reports of Oliver Letwin’s disposal of constituency paperwork in public bins, the Information Commissioner's Office has concluded that he breached the Data Protection Act.

Insolvency & Restructuring

UK Government goes cold on 3 day cooling off period
Hogan Lovells January 27 2012
After nearly two years of discussion and consultation, the UK Government has today announced that it will not be seeking to introduce new legislative controls on pre-packs, including a proposed three day notice or "cooling off" period.

Are you validly appointed?
Mills & Reeve LLP January 27 2012
Appointing administrators out of court has been thrown into complete disarray following Sir Andrew Morritt’s comments in Minmar.

Stop press - tenant insolvency - don't accept administrators' proposals
Penningtons Solicitors LLP January 27 2012
As this note goes to press, there is a fresh round of tenant insolvencies.

Pre-packaged sales in insolvency – ministerial statement
Pitmans LLP January 26 2012
In March 2011 I announced that we would be taking steps to improve the transparency and confidence of pre-pack sales in insolvency.

Insurance & Reinsurance

Treasury publishes financial services bill
SNR Denton January 30 2012
The Financial Services Bill (FS Bill) was introduced in the House of Commons on 26 January.

Insurance: allocation of losses
CMS Cameron McKenna January 26 2012
The Court of Appeal recently confirmed the rule that as soon as the insured’s liability is established then its insurer also becomes liable.

Are ‘extended warranties’ insurance products? The UK High Court decides
Matheson Ormsby Prentice January 24 2012
The recent decision of the England and Wales Court of Appeal in the case of Re Digital Satellite Warranty Cover Ltd & Ors [2011] EWHC 122 (CH) has clarified that extended warranties for the repair or replacement of consumer goods in the event of breakdown or malfunction can be regulated insurance products, with the consequence that the providers of such warranties in the United Kingdom are subject to regulation by the Financial Services Authority (“FSA”).

Harrison & Ors v Shepherd Homes Ltd & Ors [2011] EWHC 1811 (TCC)
Wedlake Bell January 17 2012
Defects to foundations had arisen across an entire development of 94 houses.

Leisure & Tourism

Does Bear Grylls really hate health and safety?
Morton Fraser January 25 2012
At a recent event in Birmingham Bear Grylls was quoted as saying “I hate health and safety and all of that”

Litigation

Disclosure obligations: whether documents are in a litigant’s “control”
Kingsley Napley January 31 2012
Disclosure, as every solicitor knows, is a vitally important stage in proceedings, and we have our own duties to ensure that clients are aware of and comply with their obligations.

Time waits for no claimant: contractual time bars and notice provisions
RPC January 31 2012
A recent case highlights the potentially perilous interaction between contractually agreed limitation periods and provisions governing the service of notices and claims.

Court counter services
Mills & Reeve LLP January 30 2012
HM Courts and Tribunals Service plans to reduce public counter services at civil and family county courts and district registries to two hours a day from April 2012.

Interest on costs
Mills & Reeve LLP January 30 2012
The dispute over Leigh Day & Co’s £105 million costs bill in the Motto v Trafigura litigation has settled.

Allocation questionnaires
Mills & Reeve LLP January 30 2012
From 19 March 2012, the court will serve allocation questionnaires on unrepresented parties only.

Allegation that a car in front prevented the car behind from overtaking leading to an accident
Eversheds January 27 2012
Ms Clement was driving a car behind another driven by Mr Pykett.

Low value RTA claim settled on basis of a Part 36 offer - cost to be awarded under fixed recoverable costs scheme rather than on standard basis
Eversheds January 27 2012
The Claimant accepted a part 36 offer on an RTA claim worth less than £10,000 prior to the issue of proceedings.

Waiver of privilege despite express intention to the contrary
Eversheds January 27 2012
The Claimant made an application to strike out the defence.

A word about words of warning
MacRoberts LLP January 27 2012
In the recent Court of Session case of Clinical Solutions International Ltd v NHS 24 and Capgemini UK plc, NHS 24 were successful in their application for an interim order under Regulation 47(10) of the Public Contracts (Scotland) Regulations 2006 (the Regulations) bringing to an end a prohibition from entering into a contract with its preferred bidder, Capgemini UK.

If a CFA assisted litigant loses his case, to what extent can the defendants chase their solicitors for costs? Are the defendants entitled to disclosure to see what the funding arrangements were between claimant and client?
Eversheds January 27 2012
The Claimant had lost his case and was impecunious.

Twittering from court - Lord Chief Justice issues practice guidance for the use of "live text-based forms of communication" from court
Eversheds January 27 2012
The courts are catching up with technology, albeit a bit slowly.

All County Court proceedings and monetary judgements will be issued only through the business centre in Salford as from end of March 2012
Eversheds January 27 2012
Salford will retain the Claimant's proceedings through the service of the defence and up to service of Allocation Questionnaire at which point they will transfer the proceedings to the relevant local court.

A difficult and troublesome case: UK Supreme Court rules on industrial application test for patents
Hogan Lovells January 27 2012
The UK Supreme Court allowed Human Genome Sciences' appeal and overturned the lower courts' decisions that the patent lacked industrial application.

Not fair! Again
Mills & Reeve LLP January 26 2012
A sub-contract between Lanes and Galliford Try did not go well.

Divorce: the end of the Russian winter?
Kingsley Napley January 26 2012
A constellation of recent decisions from our Supreme Court confirm that agreements reached between spouses about what ought to happen if they divorce should usually be upheld.

The Rolls treatment
Stephenson Harwood January 25 2012
Every new theatre needs a compelling curtain-raiser.

Landlord and tenant - relief from forfeiture
Wragge & Co LLP January 25 2012
If a lease is forfeited, the tenant may wish to apply for relief from forfeiture.

The Bribery Act – proceeds of crime
Fasken Martineau DuMoulin LLP January 24 2012
Two recent cases have brought into sharp focus the risks faced by any investor inadvertently receiving the benefit of a contract obtained through corruption.

Incredible but true
Blake Lapthorn January 23 2012
Christmas came early for alleged trespassers in the case of Benesco Charity Ltd v Kanj decided in December 2011.

Rail executive and wife commit suicide after being caught taking bribes
Dorsey & Whitney LLP January 19 2012
Following the conclusion of criminal proceedings and the recent lifting of reporting restrictions, it is reported that a railway executive, Mr Anthony Burgess, and his wife, Mrs Marian Burgess, killed themselves at their home in January 2009, after Mr Burgess allegedly took bribes from two contractors.

Harrison & Ors v Shepherd Homes Ltd & Ors [2011] EWHC 1811 (TCC)
Wedlake Bell January 17 2012
Defects to foundations had arisen across an entire development of 94 houses.

Alternative dispute resolution e-bulletin
Herbert Smith LLP January 17 2012
Welcome to our first ADR e-bulletin of 2012.

Presence v residence
Manches LLP January 16 2012
Are we edging towards a single, universally applicable, “test” of habitual residence?

C-591/10 Littlewoods Retail Ltd & others – opinion
Dorsey & Whitney LLP January 12 2012
Advocate General Trestenjak today released her Opinion in C-591/10 Littlewoods Retail Ltd and Others.

Compensation limits revised for 2012
Blake Lapthorn January 9 2012
The increase in compensation limits for certain Employment Tribunal awards have now been confirmed.

Special education needs
Blake Lapthorn January 2 2012
The Court of Appeal, in Essex County Council v Williams [2011] EWCA Civ 1315, was required to consider the age at which a local authority's responsibilities in respect of maintaining a child's Statement of Special Educational Needs (SEN) comes to an end.

Media & Entertainment

ASA adjudications snapshot
CMS Cameron McKenna January 30 2012
This article provides a selection of the most interesting ASA adjudications from December and a summary of the key issues considered in those adjudications.

Should Demi Moore’s emergency call have been kept private?
RPC January 30 2012
When the actress Demi Moore needed emergency medical care at her home in Los Angeles last week, her friend called 911.

On your marks for the Olympics
Duane Morris LLP January 25 2012
With the Olympics now a little more than six months away, most businesses are fine-tuning their contingency plans.

NHS promotes litigation?
Penningtons Solicitors LLP January 24 2012
The Health Secretary has banned 'no win no fee' claims organisations and lawyers from advertising in hospitals.

FOI – Scottish Information Commissioner strikes balanced note on Twitter requests
Morton Fraser January 20 2012
In our last Public Sector bulletin we reported that the ICO had confirmed that valid FOI requests could be made by Twitter but that the Scottish Information Commissioner had not yet issued guidance.

Policewoman arrested in media bribes inquiry
Dorsey & Whitney LLP January 19 2012
A serving policewoman has been arrested over allegations that journalists bribed police for information.

Non-profit Organizations

Charity Commission's Strategic Plan
Blake Lapthorn January 3 2012
The Charity Commission has released their Strategic Plan for 2012-15, with the focus clearly on compliance and self-reliance.

Charities Act 2011 receives Royal Assent
Blake Lapthorn January 3 2012
The Charities Bill received Royal Assent as the Charities Act 2011 on 14 December 2011.

Patents

Private Client & Offshore Services

Professional Negligence

Projects & Procurement

Not fair! Again
Mills & Reeve LLP January 26 2012
A sub-contract between Lanes and Galliford Try did not go well.

Procurement law update
Morton Fraser January 20 2012
The Outer House of the Court of Session has recently issued its decision in the Judicial Review action brought by Sidey Limited against a decision of Clackmannanshire Council to award a contract in breach of the Regulations, where the Council had voluntarily followed the restricted procedure for a below threshold contract.

Capital projects
Brodies LLP January 12 2012
The Scottish Government’s economic plan MacB included maintaining a flow of capital projects and switching revenue expenditure to counter deep cuts to capital spending.

Public

The regulatory framework for higher education?
Mills & Reeve LLP February 1 2012
The architecture for the UK higher education sector is changing radically following Lord Browne Independent Review of Higher Education Funding and Student Finance published in October 2010.

Challenging a Scottish referendum bill (Part 3: who else could bring a challenge?)
Brodies LLP January 25 2012
So, we’ve covered what a challenge to Scottish Parliament referendum legislation would mean, and the ability of the UK Government’s Law Officers to bring one.

Does Bear Grylls really hate health and safety?
Morton Fraser January 25 2012
At a recent event in Birmingham Bear Grylls was quoted as saying “I hate health and safety and all of that”

Public Bodies Act 2011: quango reform legislation empowers ministers to re-shape the public sector
Herbert Smith LLP January 20 2012
This new Act grants the coalition sweeping powers to reduce the number of public bodies and bring greater accountability, transparency and efficiency to the public sector.

Hadrian’s Wall
Brodies LLP January 12 2012
The pre-referendum skirmishes have begun.

Securitization & Structured Finance

Platform
Brodies LLP January 12 2012
The market having survived 2011 our attention now turns to 2012 and what the coming year has in store for the banking sector.

Shipping & Transport

Seventh National Policy Statement designated
Bircham Dyson Bell January 26 2012
National Policy Statements (NPSs) are the cornerstone of the Planning Act regime: they set out the need for nationally significant infrastructure projects (NSIPs), the impacts that promoters should address when preparing applications, and the Infrastructure Planning Commission (IPC) should assess when considering applications.

Is Tato Nano stalling?
Stephenson Harwood January 25 2012
"So what do you get for the price of a sofa? Not a lot, in honesty", was Top Gear's verdict on the Tato Nano in 2008.

Telecommunications

Brighton's broadband brush-off
DMH Stallard LLP January 25 2012
Culture Secretary, Jeremy Hunt, has rejected Brighton and Hove’s request to be allowed to bid for a slice of a £100 million fund to introduce superfast broadband to 14 UK cities.

Trade & Customs

White Collar Crime

Transparency International UK "Deterring and Punishing Corporate Bribery" new publication
McGuireWoods LLP January 30 2012
The UK chapter of Transparency International has recently published a new report subtitled “An evaluation of UK corporate plea agreements and civil recovery in overseas bribery cases”.

FSA fines for insider dealing
SNR Denton January 27 2012
FSA has fined David Einhorn, owner of US hedge fund Greenlight Capital Inc, and his fund £7.2 million for market abuse.

Policewoman arrested in media bribes inquiry
Dorsey & Whitney LLP January 19 2012
A serving policewoman has been arrested over allegations that journalists bribed police for information.

USA

Arbitration

NLRB strikes down employer’s mandatory arbitration agreement with class action waiver
Neal Gerber & Eisenberg LLP January 30 2012
In an attempt to avoid costly litigation, employers may require employees to sign arbitration agreements in which employees agree to arbitrate, rather than litigate, their employment-related claims and waive their right to pursue such claims as a class with other employees.

NLRB holds that class action waivers may violate the National Labor Relations Act (NLRA)
Briggs and Morgan January 30 2012
In D.R. Horton and Michael Cuda, the National Labor Relations Board (NLRB) held that an employer violates the National Labor Relations Act (NLRA) when it requires employees, “as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours or other working conditions against the employer in any forum, arbitral or judicial.”

Court of appeals compels arbitration, not class litigation
Dechert LLP January 26 2012
The role of alternative dispute resolution mechanisms in alleged consumer product defect cases continues to be a hotly disputed issue.

Third Circuit says defective computer dispute must go to arbitration despite unavailable forum
Shook Hardy & Bacon LLP January 26 2012
With one judge dissenting, a Third Circuit Court of Appeals panel has determined that a sales agreement provision requiring the arbitration of product-related disputes in a specific forum was ambiguous and thus not integral to the agreement; accordingly, the court found that the unavailability of the arbitral forum could be remedied under the Federal Arbitration Act with the court appointment of an arbitrator.

NLRB holds that NLRA prohibits class action waivers in mandatory arbitration agreements
Bond Schoeneck & King January 26 2012
Arbitration agreements are a common tool that employers use to manage EEO and wage/hour litigation risk.

NLRB rules class action waiver in employment agreement violates the NLRA
McCarter & English LLP January 25 2012
On January 6, the National Labor Relations Board ("NLRB") issued a decision in D.R. Horton, Inc., 357 N.L.R.B. No. 184, holding that class action waivers violate Section 7 of the National Labor Relations Act ("NLRA") because they inhibit an employee's right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection..."

Can arbitration agreements ban class claims?
Dorsey & Whitney LLP January 24 2012
For many years, our company has required all employees to sign a contract agreeing to arbitrate any employment claims, including discrimination claims.

Time to fix your arbitration agreements
Masuda Funai Eifert & Mitchell Ltd January 24 2012
The National Labor Relations Board issued a potentially far-reaching decision on January 6, 2012.

A tale of two arbitrations
McGuireWoods LLP January 24 2012
Those who argue that AT&T v. Concepcion killed the class action must be having an interesting January.

Supreme Court upholds mandatory pre-dispute arbitration clause in credit card agreements
Davis Wright Tremaine LLP January 24 2012
In an 8-1 decision on January 12, 2012, the U.S. Supreme Court upheld mandatory pre-dispute arbitration clauses in consumer credit card contracts covered by the Credit Repair Organizations Act, 15 U.S.C. § 1679 et seq.

After loss of ‘designated’ arbitrator, Third Circuit orders appointment of substitute arbitrator
Ballard Spahr LLP January 24 2012
A substitute arbitrator must be appointed, a federal appeals panel has ruled, in cases where a consumer contract is governed by the Federal Arbitration Act (FAA) and designates a particular arbitrator who was unavailable when a dispute arose.

Georgia court grants motion to arbitrate
Arnall Golden & Gregory LLP January 23 2012
A Georgia trial court recently entered an order staying litigation involving claims of medical malpractice and ordered those claims to be pursued in arbitration pursuant to a pre-dispute arbitration agreement.

NLRB strikes down arbitration agreement containing class action waiver
Lane Powell PC January 23 2012
A recent decision from the National Labor Relations Board (the “NLRB”) will likely make it more difficult for employers to obtain and enforce class action waivers in arbitration agreements.

North Carolina Court of Appeals reverses trial court’s denial of motion to arbitrate
Arnall Golden & Gregory LLP January 23 2012
On January 17, 2012, the North Carolina Court of Appeals issued an opinion in Westmoreland v. Heritage Healthcare of High Point LLC, et al., No. COA10-1103, N.C. Ct. App. (Westmoreland Opinion) reversing a North Carolina trial court’s denial of a nursing home defendant’s motion to compel arbitration.

Mediation costs not recoverable by FDCPA plaintiff, 11th Circuit rules
Ballard Spahr LLP January 23 2012
A consumer who prevails in a lawsuit under the Fair Debt Collection Practices Act cannot recover the expenses of a court-ordered mediation, a federal appeals court has ruled.

Credit Repair Organizations Act does not preclude arbitration of claims
Winston & Strawn LLP January 17 2012
On January 10th, the Supreme Court addressed whether the Credit Repair Organizations Act ("CROA") precludes enforcement of an arbitration agreement in a lawsuit alleging violations of CROA.

Arbitration agreements prohibiting class actions in all forums ruled unenforceable
Day Pitney LLP January 17 2012
The National Labor Relations Board (NLRB or the Board) recently ruled in D.R. Horton, Inc. and Michael Cuda that arbitration agreements that prohibit employees from asserting class actions in court and in arbitration violate the National Labor Relations Act (NLRA).

E.D. of Michigan retirees must arbitrate claim for medical benefits, despite anti-arbitration provision in CBA
Bryan Cave LLP January 13 2012
An Eastern District of Michigan court recently ruled that retired union members must arbitrate their claims seeking a lifetime of fully-paid retiree medical benefits under a CBA.

Arbitration agreements barring class actions held unenforceable by the NLRB
Fredrikson & Byron PA January 10 2012
The National Labor Relations Board (NLRB or Board) recently held that employment agreements which contain arbitration provisions cannot bar employees from pursuing class or collective arbitration proceedings. In D.R.

Aviation

DOL proposes FMLA regulatory changes regarding military family leave, flight crew eligibility and how employers calculate FMLA leave
Franczek Radelet PC January 31 2012
On January 30, 2012, the U.S. Department of Labor announced proposed changes to Family and Medical Leave Act regulations in three specific areas: 1) Military Family Leave; 2) Flight Crew FMLA Eligibility; and 3) the manner in which employers calculate increments of FMLA leave.

Reminder: OSHA Injury & Illness Summaries must be posted on February 1
Ford & Harrison LLP January 31 2012
This is a reminder that beginning February 1, employers who are not exempt from this requirement must post OSHA Form 300A, which is a summary of the total number of job-related injuries and illnesses that occurred in the preceding year.

Tower owners receive harsh reminder regarding lighting and painting compliance
Pillsbury Winthrop Shaw Pittman LLP January 31 2012
The FCC, citing air traffic navigation safety, has fined many tower owners for noncompliance with Part 17 of the Commission's Rules.

Transportation
Patton Boggs LLP January 30 2012
Almost five years to the day after President George W. Bush transmitted his FAA reauthorization proposal to Congress and 22 short-term extensions later, a breakthrough deal was struck in the week leading up to the State of the Union Address, paving the way for Congress to take up and finally enact a multi-year FAA reauthorization bill.

Banking

Mastercard introduces U.S. roadmap to enable next generation of electronic payments
Davis Wright Tremaine LLP January 31 2012
On January 30, 2012, MasterCard introduced its roadmap for migration from magnetic stripe to EMV technology.

Fed economists suggest a centralized independent public entity to create e-payments security standards
Davis Wright Tremaine LLP January 31 2012
With the growth of e-commerce and m-commerce, remote payments fraud has grown in response.

Residential Mortgage-Backed Securities Working Group
Kelley Drye & Warren LLP January 31 2012
President Obama announced in his State of the Union address on January 24, 2012, that he would “establish a Financial Crimes Unit of highly trained investigators to crack down on large-scale fraud and protect people’s investments.”

Recent trends in financing & structuring green energy M&A deals
Chadbourne & Parke LLP January 31 2012
The financial turmoil that started in the summer of 2011, particularly in Europe, raises concerns regarding the availability of financing in 2012.

CFPB adopts international money transmittal rules
Winston & Strawn LLP January 30 2012
On January 20th, the Consumer Financial Protection Bureau adopted a rule aimed at protecting consumers who transfer money internationally.

Changing legal landscape of credit card breach
Fox Rothschild LLP January 30 2012
On this blog, we recently discussed the fact that some franchise systems, franchisors and franchisees are experimenting with table-side or other hand-held credit card swipe equipment.

OCC proposes stress tests
Winston & Strawn LLP January 30 2012
On January 24th, the OCC published for comment proposed rules implementing Section 165(i) of the Dodd-Frank Act, which requires certain companies to conduct annual stress tests.

Third Circuit issues decision in New Jersey gift card escheat suit
Sheppard Mullin Richter & Hampton LLP January 30 2012
On January 5, 2011, the Third Circuit issued its decision in New Jersey Retail Merchants Association v. Sidamon-Eristoff, Case No. 10-4551 (3d Cir. Jan. 5, 2012).

Small bank exemptions
Winston & Strawn LLP January 30 2012
On January 24th, Business Week reported that the Consumer Financial Protection Bureau may exempt smaller banks from some of the new regulatory requirements currently under consideration.

Market watch: 5-year commercial real estate loans maturing in 2012
Leonard Street & Deinard January 30 2012
Commercial real estate loans originated in 2007, near the height of the real estate bubble, are maturing this year.

Financial services
Patton Boggs LLP January 30 2012
On Wednesday, January 25, Senator Kirsten Gillibrand (D-NY) sent a letter to prudential Federal regulators expressing concerns with the proposed Volcker Rule, which would impose prohibitions and restrictions on the ability of banks and systemically important nonbank financial companies from engaging in proprietary trading and certain interests in hedge funds or private equity funds.

Seventh Court of Appeals further strengthens rights of secured lenders in Chapter 11 cases
Andrews Kurth LLP January 30 2012
On January 19, 2012, the Seventh Circuit in In re River East Plaza, LLC, (No. 11-3263), held in favor of a secured lender, further strengthening the rights of secured creditors in bankruptcy cases.

Plenty to worry about in the CFPB-FTC MOU
Ballard Spahr LLP January 30 2012
The CFPB and the FTC recently released their long-awaited Memorandum of Understanding (MOU), outlining how they plan to work together on non-bank enforcement, rulemaking and research in the consumer financial services market.

Is the CFPB’s new database for actions against fraudsters targeting military personnel a trial run?
Ballard Spahr LLP January 30 2012
The CFPB has announced the creation of the “Repeat Offenders Against Military Database” (ROAM) to collect information on enforcement actions taken by federal and state officials against perpetrators of financial scams against the military community.

This week in Washington - January 29, 2012
Patton Boggs LLP January 29 2012
President Obama addressed a joint session of Congress Tuesday as he gave the annual State of the Union (SOTU) Address.

Lawmakers investigating use of arrest warrants against debtors
Frost Brown Todd LLC January 29 2012
Some lawmakers and regulators are probing the use of arrest warrants by the U.S. debt collection industry to recover money owed by borrowers behind on loans, credit card payments, and other bills.

CFPB and FTC pledge to work together
Katten Muchin Rosenman LLP January 27 2012
On January 23, the Consumer Financial Protection Bureau, which regulates banks over $10 billion in assets and non-bank consumer financial products and services, and the Federal Trade Commission entered into a Memorandum of Understanding to develop a framework for working together in many areas.

Consumer Financial Protection Bureau issues final rule and concurrent notice of proposed rulemaking to implement the Dodd-Frank Act remittance transfer provisions
Schulte Roth & Zabel LLP January 27 2012
On Jan. 20, 2012, the Consumer Financial Protection Bureau (“Bureau”) issued a final rule amending Regulation E (12 C.F.R. Part 1005) (the “Final Rule”), which implements the Electronic Fund Transfer Act (15 U.S.C. §§ 1693, et seq.) (“EFTA”) and the Official Interpretations (Supplement I to Part 1005) to the regulation.

Director Cordray speaks
Ballard Spahr LLP January 27 2012
Two recent presentations by CFPB Director Richard Cordray strike me as being “blog-worthy.”

Court bars mortgage foreclosure robo-signing claims
Ballard Spahr LLP January 27 2012
Claims by borrowers related to alleged "robo-signing" in mortgage foreclosures must be raised in the original foreclosure action and not in a subsequent lawsuit for damages, the U.S. District Court for the District of Maryland has ruled.

FTC, CFPB sign agreement to strengthen coordination efforts
Kelley Drye & Warren LLP January 27 2012
On January 23, 2012, the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) signed a memorandum of understanding (MOU) to coordinate enforcement efforts and promote consistent regulatory treatment of Consumer Financial Products or Services.

CFPB's short-term, small-dollar lending examination procedures
SNR Denton January 27 2012
On January 19, 2012, the Consumer Financial Protection Bureau ("CFPB") released its Short-Term, Small-Dollar Lending Examination Procedures Manual ("Procedures Manual") to supplement the CFPB’s Supervision and Examination Manual.

“Know Before You Owe” getting closer to the finish line
Ballard Spahr LLP January 26 2012
The CFPB has launched a third round of testing in its “Know Before You Owe” project.

IRS reopens Offshore Voluntary Disclosure Program
Taft Stettinius & Hollister LLP January 26 2012
The Internal Revenue Service recently reopened its Offshore Voluntary Disclosure Program (OVDP) as a part of its efforts to help people hiding offshore accounts get current with their taxes.

Third Circuit finds no willful violation of FACTA for printing partial expiration date
Pillsbury Winthrop Shaw Pittman LLP January 26 2012
The Third Circuit confirmed that, while the merchant’s printing of a partial credit card expiration date on the customer’s receipt violated the Fair and Accurate Credit Transactions Act, the merchant’s interpretation of Section 1681c(g)(1) of FACTA had been objectively reasonable.

Consumer Financial Protection Bureau ready for action with new appointment
Sedgwick LLP January 26 2012
On January 4, 2012, President Obama made a recess appointment, installing Richard Cordray as director of the Consumer Financial Protection Bureau (CFB).

Single purpose entity provisions in CMBS loans in the wake of Wells Fargo Bank, NA v. Cherryland Mall Ltd. P'ship, et al. (Mich. App. Dec. 27, 2011)
Dykema Gossett PLLC January 26 2012
This alert discusses possible "springing recourse" liability for borrowers and guarantors arising out of last month's decision in Wells Fargo Bank, NA v. Cherryland Mall Ltd. P'ship (Cherryland), decided last month by the Michigan Court of Appeals.

Bank of America loses key ruling in suit by MBIA against Countrywide
Sedgwick LLP January 26 2012
Bank of America (BofA) is potentially facing further losses related to its 2008 acquisition of Countrywide following a New York Supreme Court's decision in favor of bond insurer, MBIA.

Most Dodd-Frank rules not yet implemented
Sedgwick LLP January 26 2012
According to a recent study, since the Dodd-Frank Wall Street Reform and Consumer Protection Act passed in July 2010, only 21 percent of the act's 400 rulemaking requirements have been finalized.

New York completes merger of its Insurance and Banking departments
Edwards Wildman Palmer LLP January 26 2012
As previously reported on InsureReinsure, the State of New York merged its the Insurance and Banking Departments into a new, single agency known as the Department of Financial Services (“DFS”), with new and heightened oversight responsibilities over the financial services industry as a whole.

New Jersey issues bulletin revising standards for equity indexed annuity products
Edwards Wildman Palmer LLP January 26 2012
On December 28, 2011, the New Jersey Department of Banking and Insurance (the “Department”) issued Bulletin 11-31 (the “Bulletin”) revising standards for equity indexed annuities (EIA), which are annuity contracts with a value based on performance of a specified equity-based index (or indices).

Do bankers ever have fiduciary duties to their customers?
Brooks Pierce McLendon Humphrey & Leonard LLP January 26 2012
If a bartender serves a visibly intoxicated customer with even more alcohol and the customer then causes an accident while driving drunk, the bartender can be liable under North Carolina's Dram Shop Act, N.C. Gen. Stat §18B-120, et seq.

CFPB establishes Office of Minority and Women Inclusion
Dykema Gossett PLLC January 25 2012
On January 20, 2012, the CFPB established its Office of Minority and Women Inclusion ("OMWI"), which was formed under the guidance of the CFPB’s OMWI working group.

Bureau issues new rule on international money transfers
Dykema Gossett PLLC January 25 2012
On January 20, 2012, the Bureau adopted a new rule as part of Regulation E, which implements the Electronic Fund Transfer Act (“EFTA”), that will increase protections for consumers who transfer money internationally—so-called remittance transfers.

Cordray makes first appearance on Capitol Hill
SNR Denton January 25 2012
Yesterday, the newly appointed Director of the US Consumer Financial Protection Bureau (CFPB), Richard Cordray, testified before the House Committee on Oversight and Government Reform, Subcommittee on TARP, Financial Services and Bailouts of Public and Private Programs.

Congress holds hearings on Volcker Rule
Greenberg Traurig LLP January 25 2012
On January 18, 2012, the House of Representatives, Committee of Financial Services, Subcommittees on Financial Institutions and Consumer Credit and on Capital Markets and Government Sponsored Enterprises held a joint hearing examining the impact of the Volcker Rule on markets, businesses, investors and job creation.

Regulatory scorecard
Dykema Gossett PLLC January 25 2012
Click here to view an up-to-date chart of pending and final regulatory activities and proceedings at the CFPB.

Date named Bureau’s Deputy Director
Dykema Gossett PLLC January 25 2012
CFPB Director Richard Cordray wasted no time in naming Raj Date as the agency's first Deputy Director on January 6, 2012.

OCC proposes stress test requirements for national banks and federal savings associations
Schulte Roth & Zabel LLP January 25 2012
Yesterday the Office of the Comptroller of the Currency (“OCC”) issued a notice of proposed rulemaking (the “Proposed Rule”) to implement Section 165(i)(2) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which would require national banks and federal savings associations with total consolidated assets of more than $10 billion (“Covered Institutions”) to conduct annual capital-adequacy stress tests and meet certain reporting and disclosure requirements.

CFPB launches non-bank supervisory program and examination procedures
Dykema Gossett PLLC January 25 2012
Mere hours after being installed as Director of the Bureau, Richard Cordray announced that the Bureau’s non-bank supervisory practices would be getting underway as an extension of its existing bank supervision program that began last July.

Seventh Circuit holds real estate debtor cannot cram down undersecured lender with bonds
Schulte Roth & Zabel LLP January 25 2012
The U.S. Court of Appeals for the Seventh Circuit affirmed a bankruptcy court’s dismissal of a single asset real estate case on Jan. 19, 2012, reasoning that the debtor’s proposed substitute collateral “was not the indubitable equivalent of the [undersecured lender’s] mortgage.”

CFPB Office of Servicemembers Affairs continues outreach as Holly Petraeus visits troops and regulators in Montana
Dykema Gossett PLLC January 25 2012
In its continued grass-roots approach to consumer outreach, Holly Petraeus, the head of the CFPB Office of Servicemember Affairs, visitedMontana on January 17, 2012, tomeet with business leaders and local troops.

Reactions continue pouring in over Cordray recess appointment
Dykema Gossett PLLC January 25 2012
President Obama’s decision to appoint Richard Cordray on January 4, 2012, as director of the Bureau continues to make headlines as members of Congress, legal professionals, and industry groups react to the appointment and plan their next steps.

Cordray announces continued scrutiny of private student loan programs
Dykema Gossett PLLC January 25 2012
Richard Cordray, the director of the CFPB, announced that the CFPB will continue its efforts to study the marketing and lending practices in the private student loan market.

Missouri High Court scuttles credit card collection action due to problem documentation
Ballard Spahr LLP January 25 2012
A recent Missouri decision in a credit card collection case illustrates the kind of documentation attacks that are increasingly being lodged against the non-mortgage consumer lending industry.

Cordray moves full steam ahead after controversial appointment
Dykema Gossett PLLC January 25 2012
Newly appointed Director of the Bureau, Richard Cordray, is quickly making up for the time lost during his arduous appointment process and has taken a proactive posture and set an aggressive agenda for the Bureau.

Regulation by enforcement? No privileges need apply!
Ballard Spahr LLP January 25 2012
The CFPB has ramped up its enforcement staff to approximately 100 attorneys.

Bureau releases Mortgage Origination Examination Procedures
Dykema Gossett PLLC January 25 2012
On January 11, 2012, the Bureau released its Mortgage Origination Examination Procedures (“Procedures”), which consist of modules covering specific elements of the origination process.

Chicago's Vacant Building Ordinance addresses some serious problems - and creates some of its own, too
Reed Smith LLP January 24 2012
Chicago’s Vacant Building Ordinance, which imposes substantial and unprecedented duties on mortgagees of residential real estate located in the city of Chicago, continues to generate controversy – and lawsuits.

Attorney client privilege and the Bureau
Dorsey & Whitney LLP January 24 2012
The Consumer Financial Protection Bureau (“Bureau”) issued CFPB Bulletin 12-01 on January 4, 2012 providing guidance regarding the Bureau’s collection of information through the supervision process, and the confidentiality protection that this process provides to supervised institutions.

Do lenders have a right to credit bid on their collateral?
Frost Brown Todd LLC January 24 2012
Last month, the U.S. Supreme Court agreed to hear another bankruptcy case and this one could have a profound effect on a lender’s bidding rights when its collateral is up for sale.

Broad regulations for foreign financial asset reporting
Morgan Lewis & Bockius LLP January 24 2012
Proposed and temporary Treasury regulations expand upon, and perhaps duplicate, other required information reporting with respect to foreign financial assets held by certain U.S.

GAO releases report on Bank Holding Company Act exemptions
Leonard Street & Deinard January 24 2012
The Dodd-Frank Act required the Government Accountability Office (GAO) to study the implications of removing existing exemptions from the definition of “bank” under the Bank Holding Company Act of 1956 (BHC Act).

FDIC board approves final rule requiring insured depository institutions with $50 billion or more of total assets to submit resolution plans to FDIC
Goodwin Procter LLP January 24 2012
The Board of Directors of the FDIC approved a final rule (the “Final Rule”) requiring insured depository institutions with $50 billion or more in total assets (“Covered Banks”) to submit to the FDIC periodic contingency plans concerning the Covered Bank’s resolution in the event of its failure (a “Resolution Plan”).

FDIC proposes rule requiring annual stress tests of state nonmember banks and FDIC-supervised state savings associations with more than $10 billion in assets
Goodwin Procter LLP January 24 2012
The FDIC has issued a notice of proposed rule making (the “Proposal”) that would require state nonmember banks and FDIC-supervised state savings associations with over $10 billion in assets to conduct annual stress tests, report the results to the FDIC, and make the results available to the public.

Delaware Bankruptcy Court dismisses Chapter 11 petition of mezzanine borrower as filed in bad faith
Katten Muchin Rosenman LLP January 24 2012
The United States Bankruptcy Court for the District of Delaware recently granted a motion to dismiss a mezzanine borrower’s chapter 11 bankruptcy petition at the outset of the debtor’s case.

Post issuance compliance procedures for tax-exempt and tax-advantaged bonds
Godfrey & Kahn January 23 2012
Receipt of bond proceeds at closing and delivery of the transcript of proceedings for the bond issuance may mark the end of the borrowing transaction but it is just the beginning of the process for ongoing compliance with the requirements for tax exempt and tax advantaged financing.

FDIC final rule on resolution plans
Orrick Herrington & Sutcliffe LLP January 23 2012
On January 17, the FDIC approved a final rule which requires insured depository institutions with $50 billion or more in total assets to submit periodic contingency plans to the FDIC for resolution in the event of the institution's failure.

Financial services legislative and regulatory update - January 23, 2012
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 23 2012
With the Senate on still on recess or in pro forma session last week, the House had sole spotlight in our nation‟s capital.

FDIC proposed stress testing for large banks
Orrick Herrington & Sutcliffe LLP January 23 2012
On January 17, the FDIC approved a notice of proposed rulemaking to implement Section 165(i)(2) of the Dodd-Frank Act, which would require FDIC-insured state nonmember banks and FDIC-insured state-chartered savings associations with consolidated assets of more than $10 billion to conduct annual capacity-adequacy stress tests.

DOJ’s apologia for Obama recess appointments
Ballard Spahr LLP January 23 2012
Two days after President Obama’s January 4 recess appointments to the NLRB and the CFPB, DOJ’s Office of Legal Counsel (“OLC”) issued a 23-page opinion (not publicly released until January 12) on the legality of those appointments (the “Opinion”).

Making it easier to “amend-and-extend” syndicated loan agreements
Winston & Strawn LLP January 19 2012
A relatively recent development has been appearing with increasing frequency in newly negotiated and completed loan agreements for deals involving a syndicated bank group of two or more lenders.

The Consumer Financial Protection Bureau outlines its priorities under Director Cordray
Foley & Lardner LLP January 19 2012
Under the leadership of its newly appointed first director, Richard Cordray, the Consumer Financial Protection Bureau (Bureau) has laid out its top three priorities: (1) nonbank supervision; (2) protection against unfair, deceptive, or abusive acts or practices (UDAAP), and (3) disclosures.

Disclosure requirements for consumer and business deposit accounts, as recently republished by the Consumer Financial Protection Bureau
Porter Wright Morris & Arthur LLP January 19 2012
A variety of federal laws and regulations require banks and financial institutions to make certain disclosures to holders of deposit accounts.

Only a first step: the Federal Reserve Board's proposed enhanced prudential standards for systemically important financial institutions and their potential implications for asset managers
Allen & Overy LLP January 19 2012
On December 20, the Board of Governors of the Federal Reserve (the FRB) issued a proposed rule (the Proposed Rule) that would apply enhanced prudential standards to U.S. bank holding companies with total consolidated assets of USD50 billion or more (Covered Banks) and nonbank financial companies that the Financial Stability Oversight Counsel (FSOC) designates as systemically important (Non-Bank Covered Companies).

"Nonbanks" find themselves in the crosshairs of the Consumer Financial Protection Bureau
Gardere Wynne Sewell LLP January 18 2012
President Obama's recess appointment earlier this month of Richard Cordray as Director of the Consumer Financial Protection Bureau, a new federal agency borne out of the Dodd-Frank Wall Street Reform and Consumer Protection Act, has some constitutional experts and political pundits in an uproar, and many wondering how the recent developments will affect consumers and the financial industry.

Reacceptance of cashier's check without proper endorsements constitutes conversion
Winston & Strawn LLP January 17 2012
On January 9th, the United States Court of Appeals for the Fifth Circuit affirmed a trial court's finding that Wells Fargo committed conversion.

Treasury sanctions three associates of Mexican drug lord
Winston & Strawn LLP January 17 2012
On January 10th, the Treasury Department's Office of Foreign Assets Control designated three individuals with ties to Sinaloa Cartel leader Joaquin Guzman Loera (a.k.a. Chapo Guzman) as Specially Designated Narcotics Traffickers pursuant to the Foreign Narcotics Kingpin Designation Act.

TheFlyonTheWall: a judicial paradox?
Patterson Belknap Webb & Tyler LLP January 17 2012
Lawyers crave structure.

The Federal Reserve’s enhanced prudential and early remediation requirements: the impact on savings and loan holding companies
Dechert LLP January 17 2012
The Federal Reserve Board (FRB) last month issued proposed rules (Proposal) to implement the enhanced prudential standards and early remediation requirements of Sections 165 and 166 of the Dodd-Frank Act.

FSA update - 17 January 2012
Clifford Chance LLP January 17 2012
The FSA has charged Richard Joseph, who was arrested in May 2010, with eight counts of insider dealing and one count of money laundering.

Proposed enhanced prudential requirements for US-based systemically important financial institutions
Clifford Chance LLP January 13 2012
On December 20, 2011, the Federal Reserve proposed regulations to implement the enhanced prudential standards mandated by Section 165 and the early remediation requirements mandated by Section 166 of the Dodd-Frank Wall Street Reform and Consumer Protection Act with respect to US-based systemically important financial institutions.

Capital Markets

Are you paying too much? How smart companies use FCPA and UK Bribery Act due diligence to ensure their deals are valued correctly
Chadbourne & Parke LLP January 31 2012
There is a global focus on corruption that shows no signs of abating and in fact, is intensifying.

Commission brings four actions based on financial fraud
Dorsey & Whitney LLP January 31 2012
The Commission brought four actions centered on a year's long financial fraud at Sheffield, England based Symmetry Medical Sheffield LTD f/k/a Thorton Precision Components, Ltd or TPC.

NYSE further limits broker discretionary voting for 2012 proxy season
Seyfarth Shaw LLP January 31 2012
On January 25, 2012, the New York Stock Exchange (NYSE) published an information memorandum, No. 12-4, addressing the NYSE’s recent examination of broker voting in light of the Dodd-Frank Wall Street Reform and Consumer Protection Act and recent public policy trends.

Massachusetts Secretary of State adopts new regulations for investment advisers in response to Dodd-Frank Act
Foley Hoag LLP January 31 2012
The Massachusetts Securities Division (the “Division”) has adopted new regulations relating to the regulation of investment advisers.

SEC staff continues to focus on litigation contingency disclosure
Chadbourne & Parke LLP January 31 2012
In 2011, the staff of the Securities and Exchange Commission (“SEC”) zeroed in on public company disclosure surrounding litigation contingencies, most notably through staff comment letters issued in connection with the review of annual and quarterly reports filed with the SEC, as well as through staff statements made in speeches and at conferences.

Covered securities of BATS Exchange, Inc. - effective February 24, 2012
Winston & Strawn LLP January 30 2012
The Securities and Exchange Commission is adopting an amendment to Rule 146 under Section 18 of the Securities Act to designate certain securities listed, or authorized for listing, on BATS Exchange, Inc. as covered securities for purposes of Section 18 of the Securities Act.

SEC's responses to FAQs regarding "family office" exclusion from "investment adviser"
Gardere Wynne Sewell LLP January 30 2012
As previously described, the Securities and Exchange Commission has, as mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act, adopted a rule to exclude “family offices” from the definition of “investment adviser” under the Investment Advisers Act of 1940, as amended (the “Rule”).

Deloitte Touche Shanghai subpoena case - parties take differing views on procedure to resolve dispute over whether the SEC can enforce its investigative subpoena on a Chinese accounting firm
Porter Wright Morris & Arthur LLP January 30 2012
In the on-going dispute as to whether the SEC can enforce an investigative subpoena on an accounting firm in China, the parties have submitted differing proposed scheduling orders.

SEC institutes proceedings to approve or disapprove proposed new disclosure rule for private placements
Winston & Strawn LLP January 30 2012
On January 20th, the SEC instituted proceedings to determine whether to approve or disapprove FINRA's proposed adoption of new FINRA Rule 5123 regarding private placements of securities.

Verification of customer email instructions
Winston & Strawn LLP January 30 2012
On January 26th, FINRA urged members to reassess their policies and procedures to ensure that they are adequate to protect customer assets from the risks posed by fraudulent email customer instructions.

REIT values off to a blazing start for 2012
Leonard Street & Deinard January 30 2012
If REIT values are any indication, 2012 should be a great year for commercial real estate.

The new RMBS Working Group: new inquiry or overreaching?
Dorsey & Whitney LLP January 30 2012
The Residential Mortgaged Backed Securities Working Group it the newest government initiative to investigate the mortgage securitization process which many believe is at the core of the recent market crisis.

Public finance - 2011 in review and the outlook for 2012
Squire Sanders January 30 2012
2011 was an active year for regulation of the municipal market, particularly for matters relating to federal securities laws and federal tax laws.

CFTC finalizes significant Dodd-Frank swap regulations and proposes long-awaited regulations implementing Volcker Rule
Sidley Austin LLP January 30 2012
On January 11, 2012, the Commodity Futures Trading Commission (“CFTC”) held an open meeting and approved the following rule releases relating to the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”).

Is proxy access the best defense to proxy access?
Leonard Street & Deinard January 28 2012
Western Union received a shareholder proposal under Rule 14a-8 from Norges Bank.

Institutional customer suitability: new compliance certificate for broker-dealers
Katten Muchin Rosenman LLP January 27 2012
As of July 9, broker-dealers must comply with the new suitability standards established by FINRA Rule 2111 (which is modeled after NASD Rule 2310).

Court dismisses securities fraud claim for failure to allege economic loss
Katten Muchin Rosenman LLP January 27 2012
Notwithstanding a high level corporate officer’s allegedly duplicitous conduct, the U.S. District Court for the Western District of Pennsylvania recently dismissed a securities fraud claim based on the plaintiff’s failure to allege economic loss attributable to the alleged misrepresentation of the defendant.

NYSE ends broker discretionary voting for certain corporate governance proposals
Paul Weiss Rifkind Wharton & Garrison LLP January 27 2012
The New York Stock Exchange has announced that, in keeping with recent Congressional and public policy trends disfavoring broker voting of uninstructed shares (including the elimination of such voting in director elections by the NYSE and the elimination of such voting on executive compensation matters by the Dodd-Frank Act), the Exchange would end its prior policy of allowing broker voting on certain corporate governance proposals that are supported by management.

NYSE and NYSE Amex restrict broker discretionary voting on certain corporate governance proposals
Chadbourne & Parke LLP January 27 2012
On January 25, 2012, the New York Stock Exchange (NYSE) and NYSE Amex (formerly the American Stock Exchange) announced a change to the application of Rule 452 to certain types of corporate governance proxy proposals which will limit the ability of brokers to vote their customers’ shares without instruction.

Webcast: resolving corporate investigations with deferred and non-prosecution agreements
Gibson Dunn & Crutcher LLP January 27 2012
Gibson Dunn partner F. Joseph Warin and associate Michael Diamant participate in a Securities Docket's webcast on Resolving Corporate Investigations with DPAs and NPAs – 2011 Year-End Update which also features Navigant Consulting Director, Alma Angotti.

The SEC addresses the scope of a PCAOB Order of Formal Investigation
Winston & Strawn LLP January 27 2012
The Securities and Exchange Commission (SEC) recently affirmed a final decision issued by the Public Company Accounting Oversight Board (PCAOB) concerning noncooperation with a Board investigation.

SEC reduces Exchange Act fees for securities transactions
Katten Muchin Rosenman LLP January 27 2012
On January 20, the Securities and Exchange Commission announced that, effective February 21, most Securities Act of 1934 transaction fees will decrease from $19.20 per million dollars to $18.00 per million dollars.

FSB announces creation of Legal Entity Identifier Expert Group and industry advisory panel
Katten Muchin Rosenman LLP January 27 2012
The Financial Stability Board (FSB), created under the auspices of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act), announced last week the creation of a Legal Entity Identifier (LEI) Expert Group.

NYSE announces further limitations on broker voting
Leonard Street & Deinard January 27 2012
Under New York Stock Exchange Rule 452, certain matters to be voted on at board meetings of NYSE member organizations were designated as “Broker May Vote” by the NYSE in its weekly bulletin, meaning that brokers could vote customer shares on the proposals, provided that they had not received customer instruction regarding the vote.

This week in securities litigation (week ending January 27, 2012)
Dorsey & Whitney LLP January 27 2012
The President announced a new financial fraud task force focused on the root causes of the financial crisis in his State of the Union Address to Congress.

Victory for board of directors in executive pay lawsuit
Katten Muchin Rosenman LLP January 27 2012
Plaintiffs’ lawyers have recently attempted to convert a negative shareholder advisory “say on pay” vote under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act) into a breach of fiduciary duty where the board of directors implements a compensation program and awards thereunder.

NYSE further limits discretionary voting by brokers
Jones Day January 27 2012
On January 25, 2012, the New York Stock Exchange announced revisions to NYSE Rule 452.

SEC staff limits non-public submission policy
Patterson Belknap Webb & Tyler LLP January 27 2012
In connection with its ongoing efforts to promote transparency and investor protection, the Staff of the U.S. Securities and Exchange Commission recently issued a statement revising its policy regarding the non-public submission of registration statements pursuant to the Securities Act of 1933 and the Securities Exchange Act of 1934.

HIRE Act’s revocation of TEFRA exception for bearer bonds effective March 19, 2012
Sidley Austin LLP January 27 2012
Effective for issuances occurring on or after March 19, 2012, the Hiring Incentives to Restore Employment Act (the “HIRE Act”), which was signed into law by President Obama on March 18, 2010, repeals the “foreign targeted obligation” (or “Eurobond”) exception established by the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”) to the adverse U.S. tax rules applicable to bearer debt instruments.

Public company control alert: NYSE acts to further limit broker votes on specified corporate governance proposals
Sheppard Mullin Richter & Hampton LLP January 27 2012
On January 25, 2012, the New York Stock Exchange issued an Information Memo to its member organizations stating that effective immediately, brokers may not vote on corporate governance proposals supported by company management without instructions from their clients. NYSE’s rules affect the voting of all shares held in “street name” by NYSE member organizations, regardless of whether the vote is for an issuer listed on the NYSE.

Conflict minerals disclosure: a guide to complying with Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act - adoption of new rules expected first half of 2012
Milbank Tweed Hadley & McCloy LLP January 27 2012
President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank” or the “Act”) into law on July 21, 2010.

FINRA files amendments to FINRA Rule 5123 on private placements
Morrison & Foerster LLP January 26 2012
On January 19, 2012, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed a Partial Amendment No. 1 (the “Partial Amendment”) to proposed FINRA Rule 5123 (Private Placement of Securities) with the Securities and Exchange Commission (the “SEC”) to address concerns raised by market participants.

NYSE expands range of “broker may not vote” matters under Rule 452
Alston & Bird LLP January 26 2012
Yesterday, the New York Stock Exchange (NYSE) released Information Memo 12-4, “Application of Rule 452 to Certain Types of Corporate Governance Proxy Proposals,” establishing significant new restrictions on broker discretionary voting.

Reminder of annual requirements for investment managers
Winston & Strawn LLP January 26 2012
As we begin the New Year, we thought it would be helpful to remind our clients that manage separate accounts or private funds, whether hedge, private equity, or commingled funds (“Investment Managers”) of certain obligations that may be applicable to them under various U.S. federal and state laws and regulations.

U.S. Securities and Exchange Commission adopts Dodd-Frank mine safety rules
Mayer Brown LLP January 26 2012
Section 1503 of the Dodd-Frank Wall Street Reform and Consumer Protection Act requires all issuers that are operators, or that have a subsidiary that is an operator, of a coal or other mine, as defined under the Federal Mine Safety and Health Act of 1977 (MSHA), to make mine safety disclosures in periodic reports filed with the Securities and Exchange Commission.

Massachusetts Securities Division issues guidance on the use of social media by investment advisers
Foley Hoag LLP January 26 2012
On January 18, 2011 the Massachusetts Securities Division (the “Division”) issued guidance on the use of social media by investment advisers registered with The Commonwealth of Massachusetts.

SEC changes "neither admit, nor deny" policy in some civil cases
Sedgwick LLP January 26 2012
On January 6, 2012, the Securities and Exchange Commission (SEC) announced significant changes to the way it settles certain securities fraud cases.

Picard seeks injunction against California attorney general
Sedgwick LLP January 26 2012
On January 4, 2012, Madoff trustee Irving Picard filed a lawsuit in the U.S. Bankruptcy Court in Manhattan to stop California Attorney General Kamala Harris and four other defendants from pursuing lawsuits against the estate of Stanley Chais, a Beverly Hills money manager.

SEC issues much anticipated investment adviser “umbrella” registration guidance
Sidley Austin LLP January 26 2012
On January 18, 2012, the Division of Investment Management of the Securities and Exchange Commission (the “SEC”) issued a no-action letter (the “Letter”) in response to a letter submitted by the Subcommittee on Hedge Funds of the Federal Regulation of Securities Committee of the Business Law Section of the American Bar Association (the “Request Letter”).

Feeder fund investors ought not to look to trustee, judge rules
Sedgwick LLP January 26 2012
A January 5, 2012 ruling by U.S. District Court Judge Denise Cote held that investors that indirectly invested into Bernard Madoff's Ponzi scheme through feeder funds do not qualify as "customers" and accordingly are not among the Madoff victims eligible to recoup money recovered through the Madoff trustee's efforts.

Foreign private issuers--new SEC policy regarding non-public submissions
Wilk Auslander LLP January 26 2012
The SEC’s Division of Corporation Finance issued a notice on December 8, 2011 stating that it has revised its policy regarding foreign private issuers submitting first-time registration statements on a non-public basis.

SEC charges AXA advisors with failure to supervise
Brooks Pierce McLendon Humphrey & Leonard LLP January 26 2012
The SEC has brought two failure-to-supervise cases in the last several days.

SEC brings 10B-5 enforcement action against private company and former executive
Herrick Feinstein LLP January 26 2012
The SEC has filed securities fraud charges against Stiefel Laboratories Inc. ("Stiefel") and Charles Stiefel, its former chairman and CEO, alleging they defrauded stockholders out of more than $110 million by repurchasing shares of company stock at severely undervalued prices and then selling the company for a 300% premium.

SEC publishes Dodd-Frank implementation schedule
Edwards Wildman Palmer LLP January 26 2012
The Securities and Exchange Commission (SEC) has provided a timeframe for when it intends to issue new rules implementing sections of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

Delaware Court of Chancery decision enforces "no-action" clause under New York law
Herrick Feinstein LLP January 26 2012
On December 6, 2011, the Delaware Court of Chancery dismissed claims brought by the holder of 15% of the auction rate notes issued under an indenture of trust as being barred by the "no-action" clause of the indenture and not subject to exception.

SEC approves combined investment adviser registration procedure
McGuireWoods LLP January 26 2012
The SEC has approved a combined investment adviser registration procedure for related fund managers.

Congress considers “crowdfunding” and other changes in securities laws
Fredrikson & Byron PA January 26 2012
Several bills changing federal securities laws to make it easier for emerging companies to raise money are percolating in Congress.

NYSE eliminates uninstructed broker voting on certain corporate governance issues
Vorys Sater Seymour and Pease LLP January 26 2012
The New York Stock Exchange ("NYSE") published Information Memo 12-4 on January 25, 2012, in which NYSE altered its previous position under NYSE Rule 452 of allowing brokers to vote customer shares in certain situations without specific client instructions.

Despite defense efforts, Stanford trial set to begin January 23, 2012
Sedgwick LLP January 26 2012
On December 28, 2011, U.S. District Judge David Hittner issued a ruling that directs Allen Stanford's defense team to prepare for trial currently scheduled for January 23, 2012.

New York Court of Appeals rejects Martin Act preemption of common law fiduciary duty and gross negligence claims
Herrick Feinstein LLP January 26 2012
The New York Court of Appeals has ruled that New York's Martin Act (the "Act"), which grants New York's Attorney General broad powers to regulate, investigate and enforce securities fraud claims, does not preempt common law fiduciary duty and gross negligence claims.

New net worth standard for accredited investors effective February 27, 2012
Greenberg Traurig LLP January 25 2012
To conform to Dodd-Frank’s new accredited investor standard, the SEC has amended its Securities Act rules to exclude the value of a person’s home from net worth calculations used to determine whether an individual may invest in certain private offerings.

Investment adviser important dates and reminders
Foley Hoag LLP January 25 2012
All investment advisers registered with the Securities and Exchange Commission (“SEC”) are required to review their compliance policies and procedures at least annually.

SEC issues no action letter regarding registration of affiliates
Greenberg Traurig LLP January 25 2012
On January 18, 2012, the SEC issued a no action letter (the “2012 Letter”) to the American Bar Association regarding registration requirements for adviser affiliates, including related advisers and general partners/managing members of private funds and other special purpose vehicles (SPVs), in light of Dodd-Frank’s repeal of the exemption previously provided by section 203(b)(3) of the Advisers Act.

Requests for repeal of private offering ban on general solicitation and advertising
Greenberg Traurig LLP January 25 2012
Regulation D’s ban on general solicitation and advertising has come under fire in recent months.

The first settlement in the Dell insider trading cases
Dorsey & Whitney LLP January 25 2012
The DOJ and the SEC settled insider trading charges with Diamondback Capital Management, LLC in the Dell insider trading cases.

SEC v. Koss Corporation: the Commission responds to Judge Randa's questions regarding the whether the proposed settlement is fair, reasonable and adequate
Porter Wright Morris & Arthur LLP January 25 2012
On Tuesday, January 24, 2012, the SEC filed a Memorandum which defended the proposed settlement with Koss Corporation ("Koss") and its CEO.

Upcoming registration and reporting deadlines
Greenberg Traurig LLP January 25 2012
As part of the implementation of the Dodd-Frank Act, all investment advisers (including private equity, venture capital and hedge fund managers) with at least $25 million in assets under management must either (i) register or update their existing registration with the SEC or their home state regulator or (ii) file a report with the SEC as an exempt reporting adviser, in each case electronically on Form ADV.

Social media guidance
Greenberg Traurig LLP January 25 2012
The SEC recently issued a National Examination Risk Alert (as an attachment to an enforcement release) highlighting the risks investment adviser firms face when using social media.

The uninvited guest: Dodd-Frank and the family office
Patterson Belknap Webb & Tyler LLP January 24 2012
The Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") significantly changed the law regarding required registration as an investment adviser pursuant to the provisions of the Investment Advisers Act of 1940 (the "Act").

SEC settles enforcement proceeding over registered investment adviser’s failure to comply with mutual fund pricing procedures
Goodwin Procter LLP January 24 2012
The SEC settled an enforcement action against a registered investment adviser (the “Adviser”) based on the Adviser’s failure to cause certain fixed-income securities purchased in June 2008 by mutual funds it managed (the “Funds”) to be valued in accordance with the funds’ fair valuation procedures.

SEC requests public comment to assist study on investor financial literacy
Goodwin Procter LLP January 24 2012
In connection with preparing a study regarding financial literacy among investors as mandated by the Dodd-Frank Act, the SEC issued a request for public comment on the following topics specified in the Act:

California and Massachusetts propose further regulations
Pillsbury Winthrop Shaw Pittman LLP January 24 2012
In re-proposed custody rules, the California Department of Corporations (“DOC”) has reflected the most important aspects of the comment letter that Pillsbury provided on July 27, 2011, such that all transactions and short positions need not be disclosed in the quarterly account statements.

DOL confirms SOX whistleblower protections do not apply extraterritorially
Littler Mendelson January 24 2012
At a time when the extraterritorial reach of U.S. regulations seems to grow at a rate faster than the economy, U.S. employers breathed a sigh of relief when the U.S. Department of Labor's Administrative Review Board (ARB) confirmed by a 3-2 vote that the whistleblower provision of Title VIII of the Sarbanes-Oxley Act (SOX) has no extraterritorial application.

Warning to executives: reinvestment of dividends in your 401(k) and vesting of stock awards may trigger HSR filing requirements
Andrews Kurth LLP January 24 2012
As the result of the automatic investment of dividends and short-term interest earned in his 401(k) account and through vesting of restricted stock units awarded as part of his compensation, Comcast CEO Brian Roberts was charged with and recently settled claims with the DOJ Antitrust Division for violations of the notification requirements in the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”).

Corporate defendant in "perfect hedge" case settles insider trading charges with SEC and enters into a non-prosecution agreement with U.S. attorney
Porter Wright Morris & Arthur LLP January 24 2012
On Monday, January 23, 2012, the SEC announced that Diamondback Capital Management LLC ("Diamondback"), the Stamford, Connecticut-based hedge fund named as a defendant in the SEC's insider trading case last week, has agreed to settle charges with the Commission.

Securities class action filings increase compared to last year
Dorsey & Whitney LLP January 24 2012
The number of securities class actions filed in 2011 increased to 188 compared to 176 filings the prior year, according to a recent report from Cornerstone Research.

Proposed federal legislation would require companies to publicly disclose pay of women and minorities
Fox Rothschild LLP January 24 2012
A bill quietly introduced in Congress could result in a big bang to publicly traded companies.

Number of SEC settlements flat, but dollar amount of fines up, according to report; Congress annouces hearing on SEC settlement practices
Kelley Drye & Warren LLP January 24 2012
According to a report released yesterday by NERA Economic Consulting (“NERA”), the SEC entered into a total of 682 settlements in fiscal year 2011, nearly unchanged from last year’s total of 680 settlements.

SEC staff provides Advisers Act guidance on umbrella registration and on GPS and other special purpose entities
Goodwin Procter LLP January 24 2012
The staff of the SEC’s Division of Investment Management (the “Staff”) provided no-action relief that would allow affiliated advisers conducting a single advisory business to register under Investment Advisers Act of 1940 (the “Advisers Act”) by filing a single Form ADV, provided certain conditions are met.

SEC no-action letter on the registration of affiliates of registered advisers
Orrick Herrington & Sutcliffe LLP January 23 2012
On January 18, the SEC Division of Investment Management issued a No-Action Letter in response to a request from the American Bar Association Subcommittee on Hedge Funds, exempting from registration under the Investment Advisers Act of 1940 certain control affiliates of SEC registered advisers, subject to the fulfillment of certain conditions.

Disclosure obligations relating to cyber security risks
Dykema Gossett PLLC January 23 2012
Not sure if you need to make disclosures relating to cybersecurity risks and cyber incidents?

A new era of federal prosecutions: challenges for Main Street and Wall Street
Orrick Herrington & Sutcliffe LLP January 23 2012
The Director's Roundtable will be presenting a panel discussion in New York on key issues related to the new wave of investigations launched by the Securities and Exchange Commission, Department of Justice, and FBI.

SEC amendment for covered securities on BATS Exchange
Orrick Herrington & Sutcliffe LLP January 23 2012
On January 20, the SEC amended Rule 146 under Section 18 of the Securities Act to designate certain securities listed on BATS Exchange, Inc. as covered securities which are exempt from state law registration requirements.

Alphabet soup for asset managers: new and revised SEC Forms 13H, ADV, and PF
Davis Graham & Stubbs January 23 2012
As 2012 begins, investment advisers should keep in mind certain new and revised forms implemented in 2011 by the Securities and Exchange Commission (the “SEC”).

Dodd-Frank clawback requirements
Dykema Gossett PLLC January 23 2012
Under Dodd-Frank, every public company will soon be required to adopt a “clawback” policy for the recovery of certain incentive-based compensation from its executive officers in the event the company is required to restate its financials as a result of material noncompliance with reporting requirements.

CUNA Mutual Group sues RBS over RMBS
Orrick Herrington & Sutcliffe LLP January 23 2012
On January 17, 2012, RBS Securities removed to the Western District of Wisconsin an action brought by credit union insurance companies against RBS involving the sale of RMBS.

SEC staff issues guidance on registration of investment advisory affiliates
Schulte Roth & Zabel LLP January 23 2012
On Jan, 18, 2012, the SEC’s Division of Investment Management issued a no-action letter permitting registered advisers to private funds (“filing advisers”) to include general partners and similar SPVs of their affiliated funds on the filing adviser’s Form ADV.

Financial services
Patton Boggs LLP January 23 2012
On Tuesday, January 24, the House Oversight and Government Reform Subcommittee on TARP, Financial Services, and Bailouts of Public and Private Programs will hold a hearing titled "How Will the CFPB Function Under Richard Cordray?".

Rating agency developments
Orrick Herrington & Sutcliffe LLP January 23 2012
On January 18, Fitch updated its short-term rating criteria for non-financial corporates.

S.E.C. changes settlement approach
Kelley Drye & Warren LLP January 20 2012
Following months of headlines covering criticism from Judge Jed S. Rakoff of the Southern District of New York of its settlement with Citigroup, the Securities and Exchange Commission announced earlier this month that it was changing its practice of entering into settlement agreements under which defendants are allowed to neither admit nor deny liability

Federal magistrate judge in Oregon recommends dismissing "say-on-pay" lawsuit against Umpqua board
Porter Wright Morris & Arthur LLP January 20 2012
On January 11, 2012, Magistrate Judge John Acosta recommended the dismissal of the derivative lawsuit against the Board of Directors of Umpqua Holdings Corporation ("Umpqua") for breach of fiduciary duty.

District court holds that the pendency of a criminal indictment is a prerequisite to staying parallel SEC proceedings
Fox Rothschild LLP January 20 2012
In an earlier post we explored the relatively new SEC policy encouraging cooperation.

Fund adviser is subject to failure to supervise charge
Seward & Kissel LLP January 20 2012
The SEC brought an administrative action against AXA Advisors, LLC, finding that the fund advisory firm failed reasonably to supervise Leo T. Buggy with a view to preventing and detecting his violations of the federal securities laws.

Enforcing Form D filings – a misguided state policy
Allen Matkins Leck Gamble Mallory & Natsis LLP January 18 2012
The American Bar Association’s Committee on State Regulation of Securities publishes The Blue Sky Bugle, a newsletter for blue sky lawyers.

SEC seeks public comment for financial literacy study mandated by Dodd-Frank Act
Seward & Kissel LLP January 18 2012
The SEC requested comment on financial literacy and investor disclosure issues as part of a review mandated by Section 917 of the Dodd-Frank Act, which directs the SEC to study retail investors’ financial literacy and submit its findings to Congress.

SEC obtains emergency relief against private investment funds after fraud charges
Seward & Kissel LLP January 18 2012
The SEC obtained an order freezing the assets of St. Louis-based private investment funds and management firms after charging them for engaging in a scheme to defraud investors.

SEC clarifies scope of registration requirements for entities affiliated with an investment adviser registering with the SEC
Seward & Kissel LLP January 18 2012
On January 18, 2012, the SEC released a No-Action letter addressed to the American Bar Association, Business Law Section clarifying the scope of the definition "investment adviser" as it applies to entities affiliated with a registered investment adviser.

Conviction of Refco's outside lawyer is vacated; new trial ordered
Winston & Strawn LLP January 17 2012
On January 9th, the Second Circuit vacated and remanded the conviction of Refco Inc.'s outside lawyer, Joseph Collins, on securities fraud and related charges stemming from the commodity brokerage's collapse.

Proposed changes to automated improvement mechanism are filed
Winston & Strawn LLP January 17 2012
On January 11th, the SEC provided notice of C2 Exchange's proposal to amend Rule 6.51 to (i) allow trading permit holders ("TPHs") to enter Agency Orders for fewer than 50 contracts into C2's Automated Improvement Mechanism ("AIM") at the national best bid or offer ("NBBO"); and (ii) allow Initiating TPHs to designate a limit price if it elects to auto-match.

FINRA proposes the preclusion of class action employment issues from being arbitrated under its Industry Code
Winston & Strawn LLP January 17 2012
On January 5th, the SEC provided notice of the Financial Industry Regulatory Authority's proposed amendment to Rule 13201 of the Code of Arbitration Procedure for Industry Disputes ("Industry Code") to preclude collective action claims by employees of FINRA members under the Fair Labor Standards Act, the Age Discrimination in Employment Act, or the Equal Pay Act of 1963, from being arbitrated under the Industry Code.

FINRA guidance on Labor Department's communications rules
Winston & Strawn LLP January 17 2012
On January 13th, the Financial Industry Regulatory Authority provided guidance on the application of NASD Rules 2210 (Communications with the Public) and 2211 (Institutional Sales Material and Correspondence) to information provided by a firm to participant-directed individual account plan participants pursuant to U.S.

Enhanced blue sheet submissions under Exchange Rule 410a
Winston & Strawn LLP January 17 2012
On January 10th, NYSE Euronext, in conjunction with the Financial Industry Regulatory Authority and other interested members of the Intermarket Surveillance Group, announced that it is enhancing the data required to be submitted under NYSE Rule 410A (also known as Electronic Blue Sheets) to improve the regulatory agencies' ability to analyze trading activities and to support compliance with a SEC rules provision.

SEC names Jane Norberg as Deputy Chief of Whistleblower Office
Seward & Kissel LLP January 17 2012
The SEC appointed Jane A. Norberg as Deputy Chief of the Office of the Whistleblower, which oversees the SEC’s whistleblower program.

Cost-benefit analysis delays fiduciary duty rule
Winston & Strawn LLP January 17 2012
On January 12th, Bloomberg reported that the SEC's proposed harmonization of broker and investment adviser fiduciary duties has been delayed because the SEC is still in the process of quantifying the costs and benefits of the proposal.

SEC designates longer period to consider proposal to provide MBS clearing services
Winston & Strawn LLP January 17 2012
On January 10th, the SEC designated March 9, 2012, as the date by which it will either approve or institute proceedings to determine whether to disapprove the Fixed Income Clearing Corporation's proposal to allow its Mortgage-Backed Securities Division to provide guaranteed settlement and central counterparty services.

Failed brokerage's rehypothecation of excess customer collateral was not improper
Winston & Strawn LLP January 17 2012
On January 10th, the Second Circuit affirmed the dismissal of claims filed by customers of Refco Capital Markets ("RCM").

CBOE proposes the deletion of request-for-quotes rules
Winston & Strawn LLP January 17 2012
On January 9th, the SEC provided notice of the Chicago Board Options Exchange's proposal to delete rules relating to requests-for-quotes ("RFQs") for the CBOE Stock Exchange ("CBSX").

SEC advisory committee on small and emerging companies to meet
Winston & Strawn LLP January 17 2012
The SEC's Advisory Committee on Small and Emerging Companies will hold a public meeting on February 1, 2012.

SEC changes settlement policy for enforcement actions with parallel criminal proceedings
Bryan Cave LLP January 13 2012
The Securities and Exchange Commission announced earlier this month a significant change in its settlement policy for civil enforcement actions in which the defendant is also subject to parallel criminal proceedings.

SEC adopts Dodd-Frank mine safety disclosure requirements
Davis Graham & Stubbs January 11 2012
On December 21, 2011, the U.S. Securities and Exchange Commission (“SEC”) adopted final rules implementing Section 1503 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”).

SEC adopts revised net worth standard for accredited investors
Davis Graham & Stubbs January 3 2012
On December 21, 2011, the Securities Exchange Commission (“SEC” or “Commission”) amended the “net worth” standard, one of the most frequently used eligibility standards for determining “accredited investor” status for purposes of certain unregistered securities offerings.

Audit Committees
Blank Rome LLP January 1 2012
Audit Committees covers the establishment and maintenance of effective audit committees after the Sarbanes-Oxley Act of 2002 as well as the historical development of audit committees prior to 2002.

Commercial Property

Efficiency in commercial leasing
LeClairRyan January 31 2012
According to the 2011 Hildebrandt Law Department Survey by Hildebrandt Baker Robbins, companies are increasing their reliance on the in-house legal function to handle continuing growth in legal demands.

Important deadlines for tax appeals are approaching
McCarter & English LLP January 30 2012
Real and personal property is assessed as it exists on October 1 of each year, the uniform assessment date for all cities and towns in Connecticut.

The importance of a waiver of subrogation clause in a commercial lease
Husch Blackwell LLP January 30 2012
A waiver of subrogation provision is one of the most misunderstood, yet critical provisions, in a commercial lease – and one that benefits both the landlord and the tenant.

REIT values off to a blazing start for 2012
Leonard Street & Deinard January 30 2012
If REIT values are any indication, 2012 should be a great year for commercial real estate.

Some condo/HOA records are off limits to owners
Becker & Poliakoff PA January 30 2012
What is your policy for handling records inspections by owners?

Reminders from last year
McCarter & English LLP January 30 2012
In our January 2011 real estate alert we summarized two recent cases that demonstrate the importance of care in challenging local property valuation and tax assessments.

Recent developments: 1) stipulated agreements as to property valuation are not binding on assessment of similar properties, and 2) imputed rent valuation may not be used to value owner-occupied properties
McCarter & English LLP January 30 2012
A recent case from the Superior Court Tax Session has established that a stipulated agreement as to the value of a property does not have the effect of a judicial determination of value with respect to other properties in the same complex, even if similar.

Tenant gets green building upgrades during Oregon lease renewal negotiations
Arent Fox LLP January 30 2012
Welch Allyn, a New York-based manufacturer and distributor of medical supplies, was recently able to capitalize on the soft commercial real estate market by negotiating green building upgrades in connection with a 100,000-square-foot office renewal in Beaverton, Oregon.

PA agency objects to eminent domain for pipeline project
Fox Rothschild LLP January 29 2012
The Pennsylvania Game Commission filed a protest with the Federal Energy Regulatory Commission objecting to Central New York Oil and Gas Co. LLC’s attempt take over land the commission manages.

Real estate development and the demise of California’s RDAs: analysis of ABX1 26 and financing alternatives
Goodwin Procter LLP January 27 2012
Given the reach, intent, and impact of AB 26, it is prudent to review the outstanding documents between all public sector and private sector stakeholders and an RDA to determine whether a subject project has one or more Enforceable Obligations associated with it.

ARDA's survey of HOA controlled timeshare resorts
Baker & Hostetler LLP January 27 2012
The ARDA International Foundation has recently released an interesting study focused exclusively on resorts controlled by home owner associations.

Shuttered CRAs open door for new development sources
Alston & Bird LLP January 26 2012
The year started with a bang for City Hall, thanks to the California Supreme Court’s decision terminating redevelopment at the end of this month.

Tax Court reaffirms that a tax lien attaches to property held in tenancy by the entireties: United States v. Barczyk
Dykema Gossett PLLC January 26 2012
The Supreme Court of the United States recently denied the taxpayer's petition for certiorari in United States v. Barczyk, 6th Cir. No. 10-1498 (Aug. 18, 2011) cert denied (Jan. 17, 2012).

SB 1196 amendment
Becker & Poliakoff PA January 25 2012
As noted previously, SB 1196 (regarding common area common law implied warranties) was considered by the Community Affairs committee of the Florida Senate.

Second Circuit affirms dismissal of proposed class action over reimbursement practices for property damage
Sedgwick LLP January 25 2012
In Woodhams v. Allstate Fire & Cas. Co., 2012 U.S. App. LEXIS 3 (2d Cir. N.Y. Jan. 3, 2012), the Second Circuit Court of Appeals affirmed the dismissal of a proposed class action against Allstate Fire and Casualty Company over its reimbursement practices for property damage.

Considerations when leasing to a national tenant
Reinhart Boerner Van Deuren SC January 25 2012
With the prospects for the economy gradually improving, we are seeing more and more large companies beginning to utilize the stock piles of cash they have accumulated over the past three years.

Missouri court addresses owned property exclusion
Traub Lieberman Straus & Shrewsberry LLP January 25 2012
In its recent decision in Clarinet v. Essex Ins. Co., 2012 U.S. Dist. LEXIS 7300 (E.D. Mo. Jan. 23, 2012), the United States District Court for the Eastern District of Missouri had occasion to consider whether a general liability policy afforded coverage for an insured’s obligation to stabilize and later demolish its own building so as to prevent damage to third-party property.

Philadelphia BRT ruling applies reduced CLR values to property assessments
Fox Rothschild LLP January 24 2012
In a case of first impression, the City of Philadelphia’s Board of Revision of Taxes (BRT) decided on January 19, 2012, to apply the new City of Philadelphia Common Level Ratio (CLR), which had been reduced by Pennsylvania’s State Tax Equalization Board (STEB) from 32 percent to 18.1 percent, to property values as certified by the City of Philadelphia’s Office of Property Assessment (OPA), a ratio that could cut property taxes some 44 percent.

California Supreme Court eliminates redevelopment agencies
Latham & Watkins LLP January 24 2012
On December 29, 2011, in California Redevelopment Association v. Matosantos, the California Supreme Court (the Court) upheld the constitutionality of AB 1X 26, a statute ending redevelopment agencies in the state.

Ailing seller’s eagerness to sell fatal to buyer’s tax appeal
McKirdy & Riskin PA January 23 2012
A sale of the subject property was recently disqualified as an “arms’ length” sale, according to the Tax Court, because the seller was ill and accepted the first offer made by the buyer.

Henry Gifford’s lawsuit against U.S. Green Building Council dismissed
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 23 2012
A New York federal judge has held that Henry Gifford and three other design professionals cannot sue the U.S. Green Building Council (USGBC) for false advertising under the federal Lanham Act in connection with the USGBC’s Leadership in Energy and Environmental Design (LEED) ratings system for buildings.

City of Philadelphia announces stormwater management grant program
Blank Rome LLP January 23 2012
The Philadelphia Water Department and the Philadelphia Industrial Development Corporation have announced a new Stormwater Management Incentives Program (SMIP) Grant, which complements the existing SMIP Loan Program.

Michigan court holds borrower’s breach of SPE requirement in non-recourse carve-out provision of CMBS loan document results in full recourse liability for borrower and guarantor
Sutherland Asbill & Brennan LLP January 23 2012
The Michigan Court of Appeals recently held that a borrower’s violation of a non-recourse liability carve-out provision, which prohibited the borrower from becoming insolvent, resulted in the loan becoming fully recourse against the borrower.

LEED 101: a look at the proposed LEED update – LEED 2012
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 23 2012
In November 2012, the U.S. Green Building Council (USGBC) hopes to release the next update to the Leadership in Energy and Environmental Design (LEED) green-building rating system, known as LEED 2012.

Fifth Circuit upholds FCC's Shot Clock/tower siting ruling
Wiley Rein LLP January 23 2012
Today, the U.S.

Does the Surface Mining Reclamation Act preempt local zoning establishing setback requirements greater than contained in the act?
Fox Rothschild LLP January 20 2012
In Hoffman Mining Company, Inc. v. Zoning Hearing Board of Adams Township, Cambria County and Township of Adams, 2011 WL 5865672 (Pa.), the Pennsylvania Supreme Court affirmed the decision of the Commonwealth Court on the question whether the Surface Mining Conservation and Reclamation Act (Surface Mining Act) preempted a provision in a local zoning ordinance that established a setback from all residential structures that was greater than the setback provisions of the Surface Mining Act.

Landlords: beware when terminating and evicting commercial tenants
Fox Rothschild LLP January 20 2012
When a tenant under a commercial lease defaults and the landlord wishes to exercise a right to terminate the lease and evict the tenant, the landlord must comply with the terms of the lease and the applicable law regarding termination and eviction.

City Council cannot cure assessor’s mistake
McKirdy & Riskin PA January 18 2012
In Harbor Cove Marina LLC v. City of Somers Point, the Law Division of the Superior Court struck down a resolution by the City Council that increased an assessment in an attempt to cover the mistake of the City Tax Assessor.

Legislature to consider study committee report on regulatory takings
Pierce Atwood LLP January 11 2012
A “regulatory taking” happens when government land use regulations, such as vernal pool regulations and waterfowl habitat buffer restrictions, diminish a landowner’s property value so much that it is the equivalent to a seizure of that land.

State ex rel. Julnes v. S. Euclid City Council, 130 Ohio St.3d 6, 2011-Ohio-4485.
Ice Miller LLP January 10 2012
On June 27, 2011, the South Euclid City Council enacted Ordinance No. 05-11, which amended the zoning for certain property from a one family residential district to a general commercial district.

Lorenzo Properties, II, Inc. v. Akron, 2011-Ohio-5369.
Ice Miller LLP January 10 2012
Lorenzo Properties sought a conditional-use permit from the City of Akron that would allow a building Lorenzo owned to be split into three apartments.

Three Wide Entertainment v. Athens Bd. of Zoning Appeals, 194 Ohio App. 3d 1, 2011-Ohio-2304.
Ice Miller LLP January 10 2012
Three Wide submitted a zoning-permit application to the Athens Board of Zoning Appeals (“Board”) for property owned by Three Wide along Stimson Avenue in Athens.

Company & Commercial

2012 ISS shareholder voting policy updates
Chadbourne & Parke LLP January 31 2012
In November 2011, ISS updated its Corporate Governance Policy effective for shareholder meetings held on or after February 1, 2012.

Boilerplate matters: giving notice
Chadbourne & Parke LLP January 31 2012
By the time most people get to the last article in a contract the inclination is often to think that it is just the “boilerplate” and therefore there is no reason to read it closely, if it gets read at all.

ISS proxy season 2011 review & 2012 forecast
Chadbourne & Parke LLP January 31 2012
In October 2011, Chadbourne hosted its annual presentation with Institutional Shareholder Services, to review the 2011 U.S. proxy season and provide a look ahead to 2012.

Rights plans in a new era: recent drafting trends
Chadbourne & Parke LLP January 31 2012
Shareholder rights plans, commonly referred to as “poison pills,” are a tested and effective takeover defense for a board of directors to use against hostile takeovers.

FTC announces revised thresholds for interlocking directorates
Ropes & Gray LLP January 30 2012
The Federal Trade Commission has announced revised thresholds for interlocking directorates required under Section 8 of the Clayton Act (15 U.S.C. § 19(a)(5)).

SBA program creates new category of SBICs focused on early stage small businesses
Patton Boggs LLP January 30 2012
The Small Business Administration (SBA) has announced the Early Stage SBIC Program, which creates and supports a sub-category of Small Business Investment Companies (SBICs) that focus on investments in early-stage small businesses.

Merchants beware: federal law prohibits printing any portion of expiration date on credit, debit card receipt
Patton Boggs LLP January 30 2012
On January 24, 2012, the U.S. Court of Appeals for the Third Circuit held that it is a violation of the Fair and Accurate Credit Transactions Act (FACTA) to include any portion of a credit or debit card’s expiration date on an electronically printed customer receipt.

How to avoid misclassification of employees as independent contractors and the IRS amnesty program
Fennemore Craig January 30 2012
Recent surveys and studies suggest that an estimated 10% to 30% of employers misclassify their employees as independent contractors under the Internal Revenue Service (“IRS”) Code’s 20-factor test.

Is proxy access the best defense to proxy access?
Leonard Street & Deinard January 28 2012
Western Union received a shareholder proposal under Rule 14a-8 from Norges Bank.

Retailer's request for Zip Code violated law, but generated no harm
Foley Hoag LLP January 28 2012
A decision in Tyler v. Michaels Stores earlier this month from the United States District Court for the District of Massachusetts, the use of a consumer's Zip Code to find her address and send her mailings was held to be a statutory violation, but did not give rise to a claim for damages.

B Corporations
Fox Rothschild LLP January 28 2012
On January 1, 2012, a new form of doing business was born in California.

Third Circuit issues opinion in New Jersey Abandoned Property Litigation
Bryan Cave LLP January 27 2012
The Third Circuit issued a long-awaited decision in the New Jersey Abandoned Property litigation, NJ Retail Merchants Association v. Andrew Sidamon-Eristoff.

Requests for personal info legal for online, kiosk transactions, court rules
Manatt Phelps & Phillips LLP January 27 2012
In the continuing battle over companies requesting consumers’ personal identification information during credit card transactions, two decisions have limited the applicability of California’s Song-Beverly Act.

District court allows false marking to be repleaded as consumer protection claim
Loeb & Loeb LLP January 27 2012
The Leahy-Smith America Invents Act bars suits for false marking of patent rights except those brought by the federal government or in which a competitor can establish competitive injury.

Federal Trade Commission increases interlocking directorates thresholds
Bryan Cave LLP January 27 2012
On January 24, 2012 the Federal Trade Commission announced its annual revision of the interlocking directorates thresholds under Section 8 of the Clayton Act.

Beverage producer claims recycler sold rather than destroyed substandard products
Shook Hardy & Bacon LLP January 27 2012
Spike, LLC, a company that makes and distributes energy drinks, has filed a lawsuit against the company it hired to destroy 18 pallets of products that Spike determined should be removed from the marketplace as unfit for sale, claiming that the recycling company failed to destroy the products and, in fact, sold them “thereby undercutting Spike’s sales.”

Delaware Court of Chancery orders follow-on derivative action stayed in light of pending class action
Morrison & Foerster LLP January 27 2012
Today, in an authoritative 18-page ruling, Delaware Vice Chancellor Parsons ordered a follow-on derivative action stayed in light of a federal securities class action arising out of the same underlying facts.

New Jersey Trade Secrets Act becomes law
Herrick Feinstein LLP January 26 2012
On January 9, 2012, the New Jersey Trade Secrets Act (the "Act") was signed into law.

Delaware Court of Chancery temporarily enjoins an annual stockholder meeting for twenty days
Herrick Feinstein LLP January 26 2012
The Delaware Court of Chancery has issued a temporary restraining order enjoining ChinaCast Education Corporation from holding its scheduled annual stockholder meeting.

Key class action decision within Sixth Circuit
Squire Sanders January 26 2012
On December 19, 2011, Judge Cox of the Eastern District of Michigan applied the Supreme Court’s Wal-Mart Stores Inc. v. Dukes case while denying a proposed class’s certification in In Re OnStar Contract Litigation.

IRS filing and reporting requirements for ISO exercises and ESPP stock transfers
Fenwick & West LLP January 24 2012
This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former employees) upon the exercise of an incentive stock option (an “ISO”) or transferred under a taxqualified employee stock purchase plan (an “ESPP”) and inform you of new Internal Revenue Service (“IRS”) filing requirements for transactions that occurred in 2011.

Third Circuit decision addresses New Jersey gift card questions
Alston & Bird LLP January 24 2012
On January 5 the U.S. Court of Appeals for the Third Circuit issued its opinion in N.J. Retail Merchants Association v. Sidamon-Eristoff, a case involving the constitutionality of 2010 N.J. Laws Chapter 25 (the New Jersey Act), New Jersey’s recently enacted unclaimed property legislation affecting the treatment of stored value cards (SVCs).

Can you keep a secret? How to draft confidentiality and liquidated damages provisions that will zip lips
Arent Fox LLP January 24 2012
You have finally settled that nasty sexual harassment suit.

Say-on-pay: lessons learned
Dykema Gossett PLLC January 23 2012
With the 2011 annual meeting season and the first year of mandatory say-on-pay (SOP) in the rearview mirror, companies should be assessing the results of the 2011 vote and feedback received from their shareholders as they prepare for 2012, unless they are among the few companies that will be holding their SOP vote triennially.

Delaware Supreme Court affirms decision about funds legally available for redemption
McGuireWoods LLP January 23 2012
In SV Investment Partners, LLC et al. v. Thoughtworks, Inc. (Del. 2011), Delaware’s Supreme Court recently affirmed the Court of Chancery’s deferring to the way a board interpreted “funds legally available.”

Is your organization’s director & officer liability insurance enough?
Bricker & Eckler LLP January 23 2012
In an effort to help attract and retain good board members, almost all organizations carry directors and officers liability (D&O) insurance, providing officers and boards with protection against claims for their service to the organization.

The GM Plan: breaking it up is hard to do
Bracewell & Giuliani LLP January 23 2012
The worldwide press has been humming that General Motors has finally taken back the pole position from Toyota as the worldwide sales leader.

Tenth Circuit: FDCPA 'communication' must reveal existence of debt
Ballard Spahr LLP January 20 2012
A fax should not be considered a “communication” under the Fair Debt Collection Practices Act, the U.S. Court of Appeals for the Tenth Circuit has ruled, unless the fax indicates to the recipient that it relates to the collection of a debt.

Information statements due by January 31, 2012 for ISO exercises and ESPP stock transfers
Kilpatrick Townsend & Stockton LLP January 20 2012
No later than January 31, 2012, employers must provide information statements to their employees to report exercises of incentive stock options (ISOs) and transfers of stock under employee stock purchase plans (ESPPs) that occurred during 2011.

District court finds that complaint adequately alleged existence and breach of an oral partnership agreement
Katten Muchin Rosenman LLP January 20 2012
Plaintiff Scott McNamara, M.D. brought an action against defendants Catherine Picken, M.D. and Washington ENT Group, PLLC (WENT) for an accounting, conversion, breach of contract, interference with business relations, and defamation.

Cuomo issues Executive Order regarding limits on executive compensation
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 20 2012
After withdrawing nearly identical proposed legislation one day earlier, on January 18, 2012, New York Governor Andrew Cuomo issued an Executive Order directing certain New York State agencies, including the Department of Health, to promulgate regulations that limit the compensation of executives of entities that receive state funding or payments from the state.

Supreme Court rules federal courts can hear TCPA cases
Venable LLP January 19 2012
On Wednesday, the U.S. Supreme Court unanimously ruled that a lawsuit filed alleging violations of the Telephone Consumer Protection Act (“TCPA”) could be heard in Federal court.

Delaware court asked to resolve dispute over standard M&A contract terms
Milbank Tweed Hadley & McCloy LLP January 18 2012
It is interesting to note just how often courts are required to resolve disputes over the meaning of contract terms that lawyers and dealmakers take for granted.

Competition

Class-action antitrust complaint alleging an unlawful employer "no-poaching" conspiracy appears to have survived a motion to dismiss
Ford & Harrison LLP January 31 2012
Executive Summary: At a hearing yesterday in San Jose, California, a federal district court judge indicated from the bench that antitrust claims alleging an "over-arching conspiracy" to fix and suppress employee compensation through interconnected employer "no-poaching" agreements would survive a motion to dismiss for failure to state a claim.

2012 threshold revisions announced for HSR Act and Clayton Act Section 8 prohibition on interlocking directorates
Proskauer Rose LLP January 30 2012
The Hart-Scott-Rodino Antitrust Improvements Act, commonly known as the HSR Act, requires parties to certain mergers, acquisitions, and other transactions to notify the Federal Trade Commission and Department of Justice prior to consummation.

FTC revises HSR and interlocking directorate thresholds for 2012
SNR Denton January 30 2012
The US Federal Trade Commission recently announced the new, revised jurisdictional thresholds for reporting transactions pursuant to the Hart Scott Rodino Antitrust Improvements Act of 1976, and for triggering the prohibition on interlocking directorates, which are governed by Section 8 of the Clayton Act.

FTC increases HSR Act thresholds
Whiteford Taylor & Preston LLP January 30 2012
The Federal Trade Commission has revised the filing and other dollar-denominated thresholds contained in the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”).

FTC updates merger filing thresholds
Kilpatrick Townsend & Stockton LLP January 30 2012
On January 25, 2012, the Federal Trade Commission (FTC) announced its updated dollar thresholds to merger filings required by the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act).

United States announces new thresholds for merger control notifications (Hart-Scott-Rodino) and unlawful interlocking directorates (section 8)
Curtis Mallet-Prevost Colt & Mosle LLP January 30 2012
The Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR”), requires that all persons contemplating certain mergers, acquisitions or joint ventures file notifications with the Antitrust Division of the U.S. Department of Justice and with the Federal Trade Commission, and not close the transaction for a specified period of time (usually, but not always, 30 days).

FTC announces HSR premerger notification and Clayton Act § 8 thresholds
Sidley Austin LLP January 30 2012
On January 24, 2012, the Federal Trade Commission (“FTC”) approved new thresholds for premerger notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”).

FTC announces revision to Hart-Scott-Rodino thresholds
Holland & Knight LLP January 30 2012
The Federal Trade Commission (FTC) has announced this year’s revisions to the thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR), which will apply to all transactions closing on or after February 27, 2012.

FTC adjusts HSR and Clayton Act reporting thresholds
Goodwin Procter LLP January 27 2012
Each year, the Federal Trade Commission (“FTC”) adjusts the reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “H-S-R Act”) based on the change in gross national product from the prior year.

Higher HSR threshold requirements effective February 27, 2012
Andrews Kurth LLP January 27 2012
The Federal Trade Commission’s annual changes to the dollar thresholds under the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) become effective on February 27, 2012.

FTC announces new Hart-Scott-Rodino and Clayton Act Section 8 thresholds
Paul Weiss Rifkind Wharton & Garrison LLP January 27 2012
The Federal Trade Commission (the “FTC”) has revised the jurisdictional and filing fee thresholds of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) and the Premerger Notification Rules (the “Rules”).

FTC increases thresholds for Hart-Scott-Rodino Act and Corporate Interlock Statute
Baker Botts LLP January 27 2012
On January 27, 2012, the FTC published in the Federal Register its annual adjustments of dollar jurisdictional threshold amounts in the Hart-Scott-Rodino (“HSR”) Act and Section 8 of the Clayton Act (“Corporate Interlock Statute”).

FTC announces increased HSR thresholds
Ropes & Gray LLP January 27 2012
The Federal Trade Commission has announced revised jurisdictional and filing fee thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“the Act”).

Hart-Scott-Rodino Act: annual jurisdictional thresholds revisions
Haynes and Boone LLP January 27 2012
The Federal Trade Commission (FTC) recently announced its annual revisions to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) jurisdictional thresholds.

Premerger notification thresholds increased
Bryan Cave LLP January 27 2012
Effective February 27, 2012, the jurisdictional thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, will be increased.

FTC revises HSR filing thresholds
Fried Frank Harris Shriver & Jacobson LLP January 27 2012
The FTC has announced new reporting notification thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act” or the “Act”), which will be effective 30 days after the revised thresholds are published in the Federal Register.

Sixth Circuit denies Kentucky commission's attempts to regulate AT&T
Squire Sanders January 27 2012
On Tuesday, the Sixth Circuit upheld a district court decision which found that the Kentucky Public Service Commission (“Commission”) had wrongly interpreted two federal regulations and was preempted from bringing state law claims against AT&T Kentucky.

Non-compete developments
Schulte Roth & Zabel LLP January 27 2012
In this time of technological advances, rapidly moving information and economic difficulties, employers increasingly are turning to non-competition agreements to protect their businesses.

Notification threshold under the Hart-Scott-Rodino Act increased to $68.2 million
McDermott Will & Emery January 27 2012
The U.S. Federal Trade Commission (FTC) recently announced revised thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) and 2012 thresholds for determining whether parties trigger the prohibition against interlocking directors under Section 8 of the Clayton Act.

Hart-Scott-Rodino Act developments: new filing thresholds and gentle reminders
Drinker Biddle & Reath LLP January 26 2012
As we do each year in January, we are advising you of the latest adjustments to the HSR filing thresholds for mergers, acquisitions and investments.

Antitrust alert: new HSR thresholds for 2012
Fenwick & West LLP January 26 2012
The annual adjustment of the dollar thresholds for pre-acquisition filings under the Hart-Scott-Rodino Act will take effect near the end of February (exact date still pending).

FTC approves increase in annual adjustments to HSR and interlocking directorate thresholds
Squire Sanders January 26 2012
The US Federal Trade Commission (FTC) has announced revised thresholds for the Hart-Scott-Rodino (HSR) Antitrust Improvements Act of 1976.

Seventh Circuit clarifies class certification standards on Daubert challenges to expert testimony and predominance requirement
Shook Hardy & Bacon LLP January 26 2012
In the context of antitrust litigation, the Seventh Circuit Court of Appeals has determined that courts must subject expert testimony critical to a class certification ruling to a Daubert analysis if the testimony is challenged and that requiring common answers to common questions imposes a degree of uniformity not demanded by Rule 23(b)(3)’s predominance inquiry.

FTC announces changes to Hart-Scott-Rodino filing requirements
McGuireWoods LLP January 26 2012
On Jan. 24, 2012, the Federal Trade Commission announced revised thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act).

New Seventh Circuit decision endorses heightened scrutiny of experts at class certification stage while potentially lowering the bar to the predominance element at class certification
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 26 2012
In the health care antitrust world, the Federal Trade Commission (FTC) Evanston case, involving a retrospective attack on the consummated merger between Evanston Northwestern and Highland Park hospitals, is an important government enforcement benchmark.

HSR insights
Thompson Hine LLP January 26 2012
On January 24, 2012, the Federal Trade Commission (FTC) announced the 2012 revised jurisdictional thresholds under the HSR Act, which will become effective in late February or early March 2012.

Higher filing thresholds for HSR Act premerge notifications and interlocking directorates announced
Sheppard Mullin Richter & Hampton LLP January 26 2012
On January 24, 2012, the Federal Trade Commission announced revised, higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

FTC revises Hart-Scott-Rodino thresholds for 2012
Chadbourne & Parke LLP January 26 2012
On January 24, 2012, the Federal Trade Commission (FTC) announced revised notification thresholds pursuant to the Hart-Scott Rodino Act (HSR).

CEO fined for Hart-Scott-Rodino violation on acquisition of stock-based compensation
Hogan Lovells January 26 2012
A public company chief executive recently consented to a federal district court order requiring him to pay a $500,000 civil penalty for violating the Hart-Scott-Rodino Act.

Federal Trade Commission announces higher Hart-Scott-Rodino thresholds
Mayer Brown LLP January 25 2012
On January 24, 2012, the US Federal Trade Commission announced new thresholds relating to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. § 18a.

New HSR filing thresholds for 2012
Morrison & Foerster LLP January 25 2012
On January 24, 2012, the U.S. Federal Trade Commission, the agency charged with administering the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”), as amended, and its filing requirements, announced the adjusted HSR Act notification thresholds for 2012.

Hart-Scott-Rodino premerger reporting thresholds increase
Dorsey & Whitney LLP January 25 2012
On January 24, the Federal Trade Commission announced the annual adjustment of the thresholds that trigger reporting obligations (and the mandatory waiting period) under the Hart-Scott-Rodino (HSR) Act.

Federal Trade Commission announces changes to the Hart Scott Rodino premerger notification reporting thresholds and the thresholds for interlocking directorates
Williams Mullen January 25 2012
The Hart-Scott-Rodino Act, 15 U.S.C. 18a requires that parties contemplating mergers or the acquisition of assets, voting securities and other non-corporate interests above certain dollar thresholds be reported to the Federal Trade Commission and the Department of Justice Antitrust Division prior to consummation so that the potential competitive implications of the transaction can be assessed prior to closing.

Revised Hart-Scott-Rodino premerger notification thresholds for 2012
Greenberg Traurig LLP January 25 2012
On January 24, 2012, the Federal Trade Commission (FTC) announced revised Hart-Scott-Rodino Act (HSR) reporting thresholds under which transactions will be reportable only if, as a result of such transaction, the acquiring person will hold voting securities, assets, or non-corporate interests of the acquired person valued above $68.2 million, compared to $66.0 million in 2011.

Antitrust alert: U.S. merger notification and interlocking directorates thresholds increased
Jones Day January 25 2012
On January 24, 2012, the Federal Trade Commission announced revised thresholds for Hart-Scott-Rodino Premerger Notification filings and for the jurisdictional thresholds that trigger the prohibition on interlocking directorates under Section 8 of the Clayton Act.

FTC announces increased Hart-Scott-Rodino thresholds
King & Spalding LLP January 25 2012
On January 24, 2012, the Federal Trade Commission (FTC) announced the annual indexing of the jurisdictional thresholds under the Hart-Scott-Rodino (HSR) pre-merger notification statute.

FTC announces changes to HSR and Clayton Act Section 8 jurisdictional thresholds
Hogan Lovells January 25 2012
On 24 January 2012, the Federal Trade Commission (FTC) released the annual jurisdictional adjustments for premerger notification filings made pursuant to Section 7A of the Clayton Act, known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act), as well as for Section 8 of the Clayton Act.

U.S. Federal Trade Commission announces increased M&A reporting thresholds
Torys LLP January 25 2012
The U.S. Federal Trade Commission (FTC) has announced its annual revisions to the notification and filing fee thresholds of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act).

FTC revises Hart-Scott-Rodino Act thresholds
Dykema Gossett PLLC January 25 2012
On January 24, 2012, the Federal Trade Commission announced the annual revisions to the Hart-Scott-Rodino Act filing thresholds.

FTC raises Hart-Scott-Rodino thresholds
Morgan Lewis & Bockius LLP January 24 2012
As of the effective date (on or about February 23, 2012) transactions must be valued in excess of $68.2 million to be subject to the preclosing notification requirements of the Hart-Scott-Rodino Act.

FTC announces annual changes to HSR thresholds
White & Case LLP January 24 2012
Today, January 24, 2012, the Federal Trade Commission (FTC) announced the annual changes to the Hart-Scott-Rodino (HSR) Act notification thresholds.

Construction

Starting a new project? Don't forget to send a notice of right to a lien to trust deed holders and mortgagees
Stoel Rives LLP January 30 2012
Under Oregon law, a construction lien generally has priority over a trust deed or mortgage on an improvement.

Contractors need to maintain their worker's compensation insurance
Sedgwick LLP January 27 2012
Contractor's failure to maintain its workers' compensation coverage can have disastrous consequences.

SB 1196 (anti-Maronda) heading to Senate judiciary committee
Becker & Poliakoff PA January 27 2012
With the legislative session in full swing it appears that some legislators are pushing SB 1196 and its companion HB 1013, and are determined to wipe out common law implied warranties relating to residential construction.

Ohio EPA releases proposed Surface Water Rules for public comment
Frost Brown Todd LLC January 25 2012
The OEPA has released proposed new Surface Water Rules that can impact testing, permitting, and other activities required during construction, particularly during earthwork and site development.

Westmoreland County, PA contractors sued by PA Attorney General
Fox Rothschild LLP January 25 2012
The Pennsylvania Attorney General has again filed lawsuits against contractors based on the Pennsylvania Home Improvement Consumer Protection Act.

Utah reverses course on apportioning costs of defense to policyholders
Stoel Rives LLP January 25 2012
A recent Utah Supreme Court decision could result in significant benefits to some policyholders in Utah’s construction industry.

Pay-if-paid or pay-when-paid: which provision is in your contract?
Sherman & Howard LLC January 24 2012
In traditional subcontracts, the subcontractor agrees to perform a specified scope of work for a fixed price.

Copyrights

DMCA safe harbor held to protect content-sharing website
McDermott Will & Emery January 31 2012
The U.S. Court of Appeals for the Ninth Circuit affirmed summary judgment in favor of a defendant “video-sharing” website, holding that defendant is protected from liability for copyright infringement under the safe harbor provisions of the Digital Millennium Copyright Act (DMCA).

Band sues Andy Warhol Foundation over use of banana design
Winston & Strawn LLP January 31 2012
The Velvet Underground (“VU”), a 60s rock group, recently sued The Andy Warhol Foundation for trademark infringement.

Restoration of copyright in foreign works passes constitution muster
McDermott Will & Emery January 31 2012
In a 6-2 decision, the Supreme Court of the United States affirmed a decision by the United States Court of Appeals for the Tenth Circuit upholding a federal law that restored copyright protection to foreign works that had entered the public domain in the U.S.

Who owns a company’s twitter account (and musings on social media and trademarks)?
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 31 2012
As alleged in the complaint in PhoneDog LLC v. Kravitz, PhoneDog operates a website that offers cellphone news and reviews and Kravitz was hired as a product reviewer and video blogger.

Golon v. Holder: what is the public domain?
Fredrikson & Byron PA January 31 2012
In 1989, the United States joined a copyright treaty called the Berne Convention for the Protection of Literary and Artistic Works.

Details of the ASCAP settlement with the radio industry - what will your station pay?
Davis Wright Tremaine LLP January 30 2012
ASCAP and the Radio Music Licensing Committee have reached a settlement on the amount that radio stations will pay to ASCAP for the use of music for the period through the end of 2016.

Copyright lessons from the campaign trail: Romney and fair use
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 30 2012
This Republican primary season has provided lots of fodder for political blogs, but it has also provided a few gems relating to — what else — trademark issues.

IP dispatches from the political front: Mitt slings copyrighted mud at Newt
Foley Hoag LLP January 30 2012
Along with January’s hot activity in the race for the Republican Presidential nomination, we also saw the emergence of two more stories about the intersection of intellectual property and political ads.

In the game world imitation is not flattery - its infringement
Pillsbury Winthrop Shaw Pittman LLP January 30 2012
The number of lawsuits alleging copying of games continues to increase.

House, Senate leaders postpone action on online piracy bills
Paul Weiss Rifkind Wharton & Garrison LLP January 27 2012
In the wake of widespread web protests last week, Senate Majority Leader Harry Reid (D-NV) and House Judiciary Committee Chairman Lamar Smith (R-TX) postponed further action last Friday on two controversial online piracy bills, hoping to allow further discussion to resolve the concerns of affected stakeholders.

The fight for Peter and the Wolf: U.S. Supreme Court upholds the removal of masterpieces from the public domain
Hogan Lovells January 27 2012
In a 6-2 vote, the United States Supreme Court upheld a sweeping congressional amendment to the U.S. Copyright Act that "restored" copyright in works including some of the world’s most beloved masterpieces.

Restoration of copyright in foreign works passes constitutional muster
McDermott Will & Emery January 27 2012
A 1994 statute extended U.S. copyright protection to foreign works previously unprotected in the United States, removing an estimated “millions” of foreign works from free, public domain availability.

Curtain call: supremes bow to congressional authority on copyright terms
Bracewell & Giuliani LLP January 25 2012
The curtain has closed on judicial review of Congress’ authority regarding copyright terms, and now Congress reprises on center stage.

Court rules website operator not liable without specific knowledge of copyright infringement
Locke Lord LLP January 25 2012
In a case of first impression, UMG Recordings v. Shelter Capital Partners, et al., the Ninth Circuit refused to hold a website operator liable for copyright infringement based solely on the operator’s general knowledge that some of the third party content on its site may be infringing copyright owners’ rights.

Supreme Court upholds restoration of U.S. copyright protection for foreign works in the public domain
Patterson Belknap Webb & Tyler LLP January 25 2012
If you confront the question whether a foreign book, movie, song, artistic work, or other work of authorship is still in copyright in the U.S. or whether such a foreign work is being infringed in the United States, take note of a major new Supreme Court decision, Golan v. Holder.

Wikipedia blackout - shedding light on proposed US anti-piracy moves?
DMH Stallard LLP January 24 2012
A well-publicised Wikipedia blackout took place on 18 January 2012: a protest, joined by others with a prominent internet presence, such as Google, against the proposed U.S. IP protection legislation “SOPA” (the Stop Online Piracy Act) and “PIPA” (the Protect IP Act, or, more accurately, the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act).

Copyright Office requests public comment on DMCAexemptions
Steptoe & Johnson LLP January 21 2012
The U.S. Copyright Office is seeking comment on the latest set of proposed exemptions from the “anticircumvention provision” of the Digital Millennium Copyright Act.

Golan v. Holder
Loeb & Loeb LLP January 20 2012
Petitioners, who formerly had enjoyed free access to foreign works in the public domain, brought suit asserting that Congress, in enacting §514 of the 1994 Uruguay Rounds Agreements Act granting copyright protection to those works, exceeded its authority under the Copyright Clause of the U.S. Constitution and violated their First Amendment rights.

Oracle America, Inc. v. Google Inc.
Loeb & Loeb LLP January 20 2012
Plaintiff owner of copyright in “Java,” a software platform, brought suit against defendant owner of Android, a competing software platform designed for mobile computing devices, claiming infringement of its patents and copyrighted works related to incremental improvements to the efficiency and security of the Java system.

Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg
Loeb & Loeb LLP January 20 2012
Following summary judgment in favor of defendants on plaintiff’s claims of copyright infringement and violations of the Digital Millennium Copyright Act (DMCA) relating to plaintiff’s copyrighted residential building plans, district court grants defendants’ motion for attorneys’ fees as the prevailing party under the DMCA and denies their motion for attorneys’ fees under the Copyright Act.

TheFlyonTheWall: a judicial paradox?
Patterson Belknap Webb & Tyler LLP January 17 2012
Lawyers crave structure.

U.S.T.R. identifies worst of the offshore online pirates and counterfeiters
Fredrikson & Byron PA December 27 2011
While the U.S. House of Representatives continues to consider the Stop Online Piracy Act (SOPA), which would authorize new tools to crack down on piracy and counterfeiting on foreign websites, this week the Office of the U.S. Trade Representative released a new report identifying the most notorious online pirates and counterfeiters based outside the U.S.

Corporate Finance/M&A

Capital loans to private equity funds: when investors become part of the borrowing base
Chadbourne & Parke LLP January 31 2012
Private equity funds receive capital from their investors pursuant to capital calls issued periodically by the general partner or other manager of the fund.

IRS releases revised Form 990 with changes affecting joint ventures, compensation and hospitals
Foley Hoag LLP January 30 2012
On January 21, 2012, the Internal Revenue Service (IRS) released a revised version of Form 990 and accompanying instructions and schedules for tax year 2011.

The merger and acquisition process: staying I-9 compliant
LawLogix Group January 30 2012
According to the latest report from Morningstar, the first half of 2011 was an impressive one for mergers and acquisition deals, though it slowed for the second half of 2011.

AT&T seeks FCC approval to transfer advanced wireless spectrum to T-Mobile
Paul Weiss Rifkind Wharton & Garrison LLP January 27 2012
On Monday, AT&T fulfilled a key tenet of its break-up agreement with former merger partner T-Mobile USA, as it filed a request seeking FCC consent to the transfer of its advanced wireless service (AWS) spectrum to T-Mobile.

NYSE further limits discretionary voting by brokers
Jones Day January 27 2012
On January 25, 2012, the New York Stock Exchange announced revisions to NYSE Rule 452.

Health care M&A: unwary asset purchasers may take on unwanted employment-related liabilities
Epstein Becker Green January 24 2012
Acquirers of businesses often prefer to buy the assets of a seller, rather than the stock, to avoid assuming the seller’s liabilities.

Don't let your plan become an orphan
Fox Rothschild LLP January 24 2012
When talking about mergers, acquisitions and maybe even liquidations, retirement plans can sometimes get lost in the shuffle.

Corporate Immigration

E-Verify - the 'voluntary' federal employment eligibility verification system
McGuireWoods LLP January 31 2012
At the start of 2012, E-Verify requirements became effective in several states, including Georgia, Louisiana, South Carolina and Tennessee.

Form I-9 audits - are you doing more harm than good?
McGuireWoods LLP January 31 2012
Given the increased focus on employers’ immigration-related compliance efforts, many companies are conducting Form I-9 audits.

USCIS and Dun & Bradstreet announce streamlined process for VIBE data submission
Hunton & Williams LLP January 27 2012
Under its Validation Instrument for Business Enterprises (VIBE) program, through a data partnership with Dun & Bradstreet (D&B), USCIS verifies "business existence" for each US employer who files a petition for a foreign-national employee.

Justice Department steps up E-Verify education campaign for workers
Duane Morris LLP January 26 2012
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) released an informational flyer for workers entitled “Know Your Rights! What You Need to Know about E-Verify.”

USCIS streamlines EB-5 visa process for foreign investors
Allen Matkins Leck Gamble Mallory & Natsis LLP January 26 2012
Recent changes by the U.S. Citizenship and Immigration Services (USCIS) help streamline the process for obtaining an EB-5 visa.

H-1B fiscal year 2013 filing season – get ready for April 2
Ogletree Deakins January 25 2012
The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2013 begins on Friday, March 30, 2012.

PERM profile – updates and trends in the labor certification process
Ogletree Deakins January 25 2012
Recently released DOL statistics show that there are currently 21,000 PERM applications pending.

United States Citizenship and Immigration proposes regulatory change to permit processing of unlawful presence waivers
Blaney McMurtry LLP January 25 2012
On January 6, 2012, the Department of Homeland Security (“DHS”) announced that it was proposing a regulatory change that would allow spouses and children of U.S. citizens, who are in the United States but need an immigrant waiver of the unlawful presence bar, to apply for the waiver within the United States.

Compliance corner - state immigration law update: South Carolina
Ogletree Deakins January 25 2012
While comprehensive immigration reform remains stalled at the federal level, individual states continue to implement measures relating to immigration.

E-Verify - the "voluntary" federal employment eligibility verification system
McGuireWoods LLP January 25 2012
Next up in our review of states requiring private employers to participate in E-Verify – North Carolina and South Carolina.

EB-2 India and China priority dates leap forward one year
Ogletree Deakins January 25 2012
Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low.

As if I-9 compliance wasn’t confusing enough: how to avoid traps of new federal security features
Nexsen Pruet January 20 2012
Hiring managers know that in order to legally utilize immigrant workers, they must accurately complete an Employment Eligibility Verification Form I-9.

Do you have an employee working in Georgia? if so, new E-Verify requirements should be on your mind
Pierce Atwood LLP January 6 2012
Georgia’s comprehensive immigration law requires that private employers enroll in E-Verify as a condition to obtaining or renewing a broad range of business licenses and other documentation required to operate a business or engage in a professional service.

Corporate Tax

Let's be reasonable: recent Federal Circuit actions follow trend toward e-discovery reform
Sutherland Asbill & Brennan LLP February 1 2012
The U.S. Court of Appeals for the Federal Circuit recently held that expenses associated with a third-party electronic database service can constitute taxable costs.

Assault on the B&O high technology tax credit
Davis Wright Tremaine LLP January 31 2012
The high technology B&O tax credit has long been a useful tool to encourage investment by Washington’s high technology companies in research and development of innovative goods and services.

IRS issues FAQs on voluntary classification settlement program for misclassified workers
Reinhart Boerner Van Deuren SC January 30 2012
As discussed in Reinhart's October 2011 Employee Benefits Update, the IRS has created a new program regarding workers misclassified as independent contractors or other non-employees.

Reduced input tax credit rate reduced from 75% to 55% for trusts (including managed investment schemes and superannuation schemes) from 1 July 2012
DLA Piper January 30 2012
On 13 January 2012, Treasury released exposure draft regulations setting out proposed amendments to the Goods and Services Tax (GST) financial supply rules.

Senate subcommittee holds hearings on mutual fund investment in commodities
Winston & Strawn LLP January 30 2012
On January 26th, Accounting Today summarized the issues discussed at a Senate subcommittee hearing on mutual fund investment in commodities.

Physicians: be aware of the Pennsylvania sales and use tax
Fox Rothschild LLP January 30 2012
Most medical practices in Pennsylvania are aware that Pennsylvania imposes a sales and use tax on various items and services purchased by medical practices.

IRS issues guidance on determination letter program
Reinhart Boerner Van Deuren SC January 30 2012
The IRS issued the "2011 Cumulative List of Changes in Plan Qualification Requirements" as Notice 2011-97 (2011 Cumulative List).

Fight fire with fire: major hotel chains respond to OTA tax inequity by launching room key website
Baker & Hostetler LLP January 30 2012
As we reported previously, the relationship between online travel agencies (“OTA”s) and hotels has been a strained one.

IRS releases new regulations governing repair expenditures
Baker Donelson Bearman Caldwell & Berkowitz PC January 30 2012
Last month, the Internal Revenue Service (IRS) released long-awaited regulations governing the tax treatment of expenditures incurred to repair tangible property (New Regulations).

IRS issues revised guidance on W-2 reporting requirements for employer-sponsored health plan coverage
McDermott Will & Emery January 30 2012
The Internal Revenue Service (IRS) has issued revised guidance, Notice 2011-28, regarding the requirement under the Patient Protection and Affordable Care Act (PPACA) that employers report to employees the cost of their employer-sponsored group health plan coverage on Forms W-2.

Tax
Patton Boggs LLP January 30 2012
On January 24, the House and Senate began conferencing on the payroll tax, unemployment insurance and Medicare physicians payment fix – or the so-called “doc fix” – legislation.

2012 estate planning opportunities: waiting could prove costly
Neal Gerber & Eisenberg LLP January 30 2012
On Jan. 1, 2013, certain transfer tax provisions of the “Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010” (the “Tax Relief Act”) expire and federal estate, gift and generation-skipping transfer (“GST”) tax rates and exemptions return to pre-2001 laws, which include increased tax rates of up to 55 percent and decreased exemption amounts of $1 million, adjusted for inflation (unless Congress acts to the contrary).

Energy
Patton Boggs LLP January 30 2012
The Administration’s FY 2013 budget proposal — to be transmitted to Congress on February 13, one week after the statutory deadline for submission — is expected to include temporary proposals to extend $5 billion worth of clean energy tax credits, including the Advanced Energy Manufacturing Tax Credit and the Production Tax Credit.

Cycle B submission period opens February 1, 2012
Reinhart Boerner Van Deuren SC January 30 2012
Effective February 1, 2012, the Internal Revenue Service (IRS) will begin accepting determination letter applications from remedial amendment period Cycle B individually designed plans.

Update on reporting the cost of health coverage on Form W-2
Vorys Sater Seymour and Pease LLP January 30 2012
The IRS issued Notice 2012-9 on January 3, 2012, clarifying some of its earlier guidance in Notice 2011-28 on reporting the cost of health coverage on Form W-2.

Upcoming hearings
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 29 2012
Senate Finance Committee Chairman Max Baucus (D-MT) announced January 24 that he will hold a hearing January 31 to explore a long-term solution to the problem of finding a way to pay for short-term tax breaks that expire annually or biennially.

Reporting the cost of healthcare on W2s
Davis Wright Tremaine LLP January 27 2012
Are you scrambling to do your W2s at the last minute? Not to put any more pressure on you, but if you have 250 or more employees and didn’t see the joint memo by Stuart C.

Whistleblower adequately alleged subsection 1962(c) and 1962(d) violations
Kelley Drye & Warren LLP January 27 2012
Michael DeGuelle worked for S. C. Johnson & Son, Inc. in its tax department.

Waxman urges House lawmakers to revisit spectrum-related provisions of tax relief bill
Paul Weiss Rifkind Wharton & Garrison LLP January 27 2012
During a conference committee session, ranking House Energy & Commerce Committee member Henry Waxman (D-CA) urged his colleagues to “clean up” spectrum-related provisions of the Middle Class Tax Relief and Job Creation Act (H.R. 3630) that prohibit the FCC from imposing eligibility restrictions on bidders for spectrum reclaimed through the incentive auction process.

New withholding requirements for qualified plan distributions to D.C. residents
Seyfarth Shaw LLP January 27 2012
Qualified retirement plans (and 403(b) plans) with participants who live in the District of Columbia are subject to new tax withholding rates.

Getting specific: IRS issues guidance on withholding for specified notional principal contracts under Section 871(m), delays statutory effective date
Sutherland Asbill & Brennan LLP January 27 2012
Section 871(m) generally treats “dividend equivalent” payments on securities lending transactions, repos and “specified notional principal contracts” as dividends from U.S. sources, which potentially are subject to U.S. withholding tax.

IRS and Treasury Department publish anticipated guidance on "dividend equivalent" payments derived from equity swap arrangements
Proskauer Rose LLP January 27 2012
On January 19, 2012, the U.S Treasury Department ("Treasury") and the Internal Revenue Service ("IRS") issued rules governing when equity swaps and similar transactions would result in imposition of U.S. withholding tax under Section 871(m) and related Sections of the Internal Revenue Code of 1986, as amended (the "Code").

Nonprofit topics in the IRS 2011-2012 Priority Guidance Plan
Bricker & Eckler LLP January 26 2012
This past fall, the IRS released its Priority Guidance Plan for 2011-2012 (the “Plan”). The Plan is a list of projects that the IRS intends to address through regulations, rulings or other administrative guidance from July 1, 2011 through June 30, 2012.

$5.12 million gift giving window of opportunity: 11 months and counting!
Fox Rothschild LLP January 26 2012
In prior alerts, we informed you of short-term planning opportunities involving family gifting.

Upcoming deadline for information reporting requirements for incentive stock options and employee stock purchase plans
Smith Gambrell & Russell LLP January 25 2012
Section 6039 of the Internal Revenue Code of 1986, as amended, requires employers to report certain information to employees and the IRS regarding an employee's exercise of an incentive stock option (ISO) or transfer of stock acquired by an employee under an employee stock purchase plan (ESPP).

IRS announces February 2012 interest rates
Bryan Cave LLP January 25 2012
The 7520 rate for February 2012 stayed level at 1.4%.

IRS releases 2011 Form 990 for exempt organizations
McGuireWoods LLP January 25 2012
On Jan. 21, 2012, the IRS released the 2011 Form 990 for exempt organizations, as well as most of the accompanying schedules.

IRS issues new regulations on dividend withholding
Greenberg Traurig LLP January 25 2012
On January 19, 2012, the Internal Revenue Service released two sets of regulations addressing the U.S. withholding tax rules for dividend equivalents paid on certain derivatives.

What’s new for tax year 2011 (when filing in 2012)
Duane Morris LLP January 25 2012
The following are select tax topics affecting individuals and businesses for tax year 2011.

The case for investing in the IRS
Morvillo Abramowitz Grand Iason Anello & Bohrer January 25 2012
Most American taxpayers would not consider the IRS to be underfunded, let alone the IRS’s need for more resources to be the most serious problem they face.

Deadline approaching for reporting 2011 ISO exercises and ESPP transfers
Goodwin Procter LLP January 24 2012
Section 6039 of the Internal Revenue Code requires corporations to provide information statements to employees (including former employees) and information filings to the IRS regarding exercises of incentive stock options (“ISOs”) by employees and former employees.

New 2012 Offshore Voluntary Disclosure Program; taxpayer advocate criticizes IRS "bait & switch"; current offshore enforcement initiatives
Duane Morris LLP January 24 2012
On January 9, 2012, the Internal Revenue Service (IRS) announced that it had reopened the Offshore Voluntary Disclosure Program (OVDP) following the closure of the 2011 and 2009 programs and the collection of more than $4.4 billion USD from those programs.

Applicable federal rates and housing tax credit applicable percentages for January 2012
Squire Sanders January 24 2012
The US Treasury (Internal Revenue Service) issues a revenue ruling each month with interest rates.

Cyber Assistant delay to 2012
Bryan Cave LLP January 24 2012
As we pointed out in our Oct. 19, 2010 entry, it might have been worthwhile to delay filing a new Form 1023 until the IRS launched its “Cyber Assistant” online version which enabled online filing at a substantially reduced fee.

IRS concludes attorney fees related to generic drug patent infringement lawsuits must be capitalized
Winston & Strawn LLP January 24 2012
In a recent Chief Counsel Memorandum (“CCM”), the Internal Revenue Service (the “IRS”) concluded (contrary to an established industry custom) that attorney fees incurred for investigatory patent research and to defend actions for patent infringement in connection with the filing of abbreviated new drug applications (“ANDAs”) were not deductible and instead must be capitalized.

IRS mileage rates for 2012 applicable to exempt organizations remain unchanged
Whiteford Taylor & Preston LLP January 23 2012
On December 9, 2011, the Internal Revenue Service announced that the 2012 optional standard mileage rate for all business miles driven will remain at 55.5 cents per mile.

Annual reporting requirements for incentive stock options and employee stock purchase plans
Orrick Herrington & Sutcliffe LLP January 23 2012
For any exercise of an incentive stock option (ISO) or transfer of a share previously purchased pursuant to a tax-qualified employee stock purchase plan (ESPP) where the purchase price paid for the share was (a) less than 100% of the fair market value on the date of grant or (b) not fixed or determinable on the date of grant, the Internal Revenue Code requires companies to furnish, by January 31, 2012, annual information statements to the participant who exercised the ISO or transferred the ESPP share; and file, by February 28, 2012 (for paper filers) or by April 2, 2012 (for electronic filers), an information return with the IRS (please note that companies may request an automatic 30-day extension of this deadline by filing a Form 8809, Application for Automatic Extension of Time to File Information Returns, with the IRS on or before the applicable filing deadline).

Charitable lead annuity trusts (CLATs): passing down wealth and philanthropic values
Sidley Austin LLP January 23 2012
The United States is in a period of low interest rates and what seems to be a depressed stock market.

Tax consequences of civil unions and same-sex marriages
Sidley Austin LLP January 23 2012
States have taken various approaches to recognizing same-sex committed relationships.

2012 transfer tax exclusions
Sidley Austin LLP January 23 2012
The federal lifetime exclusion for 2012 is $5,120,000.

IRS launches new online search tool
Bryan Cave LLP January 23 2012
The IRS today launched a new online search tool, Exempt Organizations Select Check, to help users more easily find information about tax-exempt organizations.

IRS modernized e-file operations for 990 filers is suspended for two months
Whiteford Taylor & Preston LLP January 23 2012
The IRS recently announced that its modernized e-file system will not be available from January 1, 2012 through February 29, 2012 for electronic filing of Forms 990, 990-EZ, 990-PF and 1120-POL information returns.

Gift tax rules
Sidley Austin LLP January 23 2012
Your 2011 gift tax return is due on April 17, 2012.

Public affairs
Ice Miller LLP January 20 2012
The 2012 legislative session will almost certainly be as contentious as we witnessed in 2011.

Deal due diligence: understanding recent health care reforms on employer plans
Winston & Strawn LLP January 19 2012
In March 2010, President Obama signed the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 (collectively, the “PPACA”).

Draft FATCA regulations to be published in January 2012
Dechert LLP January 18 2012
The Internal Revenue Service of the United States has recently announced that the expected draft FATCA regulations will not now be issued until shortly after the New Year.

Further relief on section 6045b reporting
Sheppard Mullin Richter & Hampton LLP January 17 2012
As previously reported in the January 9th blog article, today is the last day to file Form 8937 to report 2011 corporate actions that affect stock basis, as required under Internal Revenue Code section 6045B.

New state revenues should not continue the fiscal roller coaster
Greenberg Traurig LLP January 12 2012
The more things change: Gov. Brown’s first budget was the first on-time budget in years and the first majority vote budget in decades.

Derivatives

CFTC considering mutual fund regulation
Winston & Strawn LLP January 30 2012
On January 20th, Bloomberg reported the CFTC may hold a private vote on whether to adopt a rule requiring mutual funds holding commodity-based derivatives to comply with new registration and marketing rules.

MF Global's customers and the corporate veil
Winston & Strawn LLP January 30 2012
On January 23rd, Futures Magazine summarized the arguments made by certain customers of MF Global's futures commission merchant in support of their request to pierce the corporate veil between MF Global Holdings Ltd., the parent company, and all the subsidiaries, including the FCM.

Effective date of NFA interpretive notice regarding price slippage and price requoting
Winston & Strawn LLP January 30 2012
On January 26th, the National Futures Association announced that the CFTC has approved NFA's Interpretive Notice entitled NFA Compliance Rule 2-36: Requirements for Forex Transactions.

CFTC announces roundtable discussion of making a swap "available to trade"
Winston & Strawn LLP January 30 2012
On January 25th, the CFTC announced it will hold a public roundtable on January 30, 2012 to discuss the proposed regulations to implement the "available to trade" provision of the trade execution requirement set forth in Section 2(h)(8) of the Commodity Exchange Act, as required by Section 723 of the Dodd-Frank Act.

CFTC reviews FCMs
Winston & Strawn LLP January 30 2012
On January 25th, the CFTC released the findings it reached after conducting a limited review of futures commission merchant compliance with customer segregation of fund requirements.

CFTC roundtable to discuss "available to trade" provision
Katten Muchin Rosenman LLP January 27 2012
The staff of the Commodity Futures Trading Commission (CFTC) will hold a public roundtable to discuss the “available to trade” provision for swap execution facilities (SEFs) and designated contract markets (DCMs) on January 30, at 9:30 am (Eastern Time).

CFTC releases results of limited reviews of future commission merchants
Katten Muchin Rosenman LLP January 27 2012
On January 25, the Commodity Futures Trading Commission released the findings of limited reviews of future commission merchants (FCMs) conducted to assess compliance with requirements to segregate customer funds (including a review of an FCMs obligation to set aside, in secured accounts, funds deposited by customers for trading on foreign boards of trade).

Federal authorities question MF Global regulator
Sedgwick LLP January 26 2012
Federal regulators have broadened their inquiry into the massive collapse of MF Global and are now reviewing the actions of the CME Group, which acts as the operator of the commodities exchange where the fallen company did its business.

Plaintiffs challenging CFTC position limits dealt set back
Leonard Street & Deinard January 24 2012
As we noted, the International Swaps and Derivatives Association, Inc., or ISDA, and the Securities Industry and Financial Markets Association, or SIFMA, filed a legal challenge to the CFTC’s final rules that limit the positions that investors may own in certain commodities.

Reporting swap data: the CFTC's final rule on swap data recordkeeping and reporting requirements
Allen & Overy LLP January 20 2012
On December 20, 2011, the Commodity Futures Trading Commission (the Commission) unanimously approved the publication in the Federal Register of the final rule on Swap Data Recordkeeping and Reporting Requirements (the Final Rule).

Reporting the future: the CFTC’s final rule on real-time public reporting of swap data
Allen & Overy LLP January 17 2012
On December 20, 2011, the Commodity Futures Trading Commission (the Commission) unanimously approved a final rule regarding the real-time public reporting of swap transaction data (the Final Rule).

Designs and trade secrets

New Jersey Trade Secrets Act creates new remedies for misappropriation and warrants precautionary measures when hiring employees
McCarter & English LLP February 1 2012
On January 5, 2012, the New Jersey Trade Secrets Act ("NJTSA") became law.

New Jersey Trade Secrets Act becomes law
Herrick Feinstein LLP January 26 2012
On January 9, 2012, the New Jersey Trade Secrets Act (the "Act") was signed into law.

E-commerce

Adopting Zubulake, New York appellate court upholds sanctions for spoliation of e-mail
Locke Lord LLP February 1 2012
In Voom HD Holdings v. EchoStar Satellite LLC, No. 600292/08, New York’s Appellate Division, First Department became the first New York Appellate Court to adopt the standard for the preservation of electronic evidence set forth in Zubulake v. UBS Warburg LLC, 220 FRD 212 (S.D.N.Y. 2003), while directly addressing the issue of “when a party reasonably anticipates litigation.”

New domain name registry application period now open though critics urge delay
Neal Gerber & Eisenberg LLP January 31 2012
On Thursday, Jan. 12, 2012, the Internet Corporation for Assigned Names and Numbers (ICANN) began accepting applications from private- and public-sector entities and organizations to obtain nearly any combination of words as their own generic top-level domain name (gTLD) registry.

NLRB offers guidance on employer social media policies
Ropes & Gray LLP January 31 2012
On January 24, 2012, the General Counsel of the National Labor Relations Board (the “NLRB”) issued a report on recent NLRB decisions concerning the impact of federal labor law (which applies to both union and non-union employers) on social media policies in the workplace.

Mark your calendars - 2012 gTLD deadlines
Fish & Richardson PC January 31 2012
The new generic top-level domain (gTLD) application period is open.

MMA releases final privacy policy guidelines for mobile apps
Kelley Drye & Warren LLP January 31 2012
The way companies collect information through mobile apps has been the focus of several FTC actions, Congressional hearings, proposed legislation, and at least a dozen class action lawsuits.

Employers beware: the NLRB's Acting General Counsel offers additional guidance on social media issues
Faegre Baker Daniels January 31 2012
As we have discussed in previous legal updates—see the list of related legal updates on the left—the National Labor Relations Board (NLRB or the "Board") has been very active in prosecuting employers, union and non-union alike, who violate employees' Section 7 rights under the National Labor Relations Act ("Act") based upon those employees' postings on social media sites.

NLRB's Acting General Counsel issues second report on social media cases
Vorys Sater Seymour and Pease LLP January 29 2012
Recognizing that the increased use of social media by employees commenting on work-related matters has led to many complex issues for employers, the Acting General Counsel (AGC) issued its first report in August 2011 summarizing cases involving social media issues.

NLRB shows no sign of relenting in scrutiny of social media policies
Greenberg Traurig LLP January 27 2012
For several months, we have been following the National Labor Relations Board’s (NLRB) increasing scrutiny of employer social media and communications policies that, the agency feels, impair employees’ rights to complain about wages and working conditions – rights enjoyed by nearly all employees (not just unionized employees) under the National Labor Relations Act (NLRA).

NLRB General Counsel's Office's second social media report still leaves questions regarding social media policies uunanswered
Porter Wright Morris & Arthur LLP January 27 2012
On Wednesday, the NLRB General Counsel's Office issued its second report on social media cases that have been brought to it for advice by regional directors.

Acting General Counsel of the NLRB issues second report on social media
McDermott Will & Emery January 27 2012
On Wednesday, January 25, 2012, National Labor Relations Board (NLRB) acting General Counsel Lafe Solomon released a second report describing social media cases reviewed by his office.

NLRB report challenges validity of many commonly used social media policies
Littler Mendelson January 27 2012
In its most recent effort to draw lines on the self-described “hot topic” of the “lawfulness of employers’ social media policies and rules,” the National Labor Relations Board’s (NLRB) Office of General Counsel has taken the position that many policy provisions commonly seen in employers’ social media policies violate the National Labor Relations Act (NLRA).

NLRB Acting General Counsel issues second report on social media
Winston & Strawn LLP January 27 2012
On January 24, the Acting General Counsel of the National Labor Relations Board, Lafe E. Solomon, (“NLRB” or “Board”) issued a second report, Memorandum OM 12-31, which updates the Acting General Counsel’s earlier August 2011 report on social media issues in the workplace.

Stop Online Piracy Act causes controversy between U.S. giants
Larkin Hoffman January 27 2012
In an effort to combat online piracy, Representative Lamar Smith from Texas introduced the Stop Online Piracy Act (SOPA) in October 2011.

Mere advertisement of goods not infringement
The McDaniel Law Firm PC January 26 2012
Trade dress infringement claims based on a company’s alleged joint control over an Internet website were insufficient to support a claim under federal trademark law in a dispute between a distributor and its former manufacturor.

Media mindshare thought leadership series II – 2012 predictions
Loeb & Loeb LLP January 26 2012
What’s in store for e-commerce, mobile coupons and social media in 2012?

Massachusetts Superior Court finds personal jurisdiction over foreign ski manufacturer where plaintiff purchased allegedly defective skis in Massachusetts from store located through search function on manufacturer’s website
Foley Hoag LLP January 26 2012
In Lafond v. Salomon North America, Inc., C.A. No. 2008- 1383 (Mass. Super. Dec. 19, 2011), plaintiff was injured when one of his ski bindings broke while skiing in Utah.

Philip Morris USA, Inc. v. Jiang, No. 11-CV-24049 (S.D. Fla. Dec. 12, 2011)
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP January 25 2012
Defendants used nearly sixty domain names containing plaintiff’s marks for websites selling counterfeit cigarettes bearing those marks.

Weather Underground, Inc. v. Navigation Catalyst Sys., Inc., 100 U.S.P.Q.2d 1778 (E.D. Mich. Nov. 9, 2011)
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP January 25 2012
Defendants registered domain names in bulk and made money from pay-per-click advertising on the corresponding websites.

Ascentive, LLC v. Opinion Corp., 2011 WL 6181452 (E.D.N.Y. Dec. 13, 2011)
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP January 25 2012
Plaintiffs’ goods and services were the subject of negative reviews from third parties on defendant’s consumer-review website, “PissedConsumer.com.”

NLRB increases scrutiny of employer restrictions on employee social media usage
Epstein Becker Green January 25 2012
No governmental body has been more active in addressing social media’s impact on the workplace than the National Labor Relations Board (“Board”).

The second installment of our media mindshare thought leadership series
Loeb & Loeb LLP January 24 2012
Loeb & Loeb's Advanced Media and Technology Department is proud to present the second installment of our Media MindShare Thought Leadership Series, a collection of video interviews featuring attorneys, clients and other leaders in the digital media and technology space, discussing key trends and issues of importance to advertisers, agencies and any company employing emerging media platforms to extend their market reach.

Class action lawyers “like” Facebook decision, which impacts social media advertising
Edwards Wildman Palmer LLP January 20 2012
A group of Facebook users have successfully advanced their right of publicity case against Facebook beyond the pleadings stage after overcoming the social media giant’s motion to dismiss their lawsuit on various grounds before the United States District Court for the Northern District of California in San Jose, California.

Department of Justice improves the odds of online gambling
Dinsmore & Shohl LLP January 19 2012
The online gaming, or igaming, industry, which began in 1995, is thriving.

Attention brand owners! The application period for new generic top-level domain names is now open
Bracewell & Giuliani LLP January 17 2012
In spite of last-minute pressure from the U.S. Department of Commerce and the Federal Trade Commission about the program’s inadequate protections for trademark owners, consumers and law enforcement agencies, the Internet Corporation for Assigned Names and Numbers (“ICANN”) opened the application period for new generic top-level domain names (“gTLDs”) on January 12, 2012.

Stop Online Piracy Act
Ice Miller LLP January 17 2012
Congress will return later this month where the House will discuss the Stop Online Piracy Act (H.R.3261) (“SOPA”) authored by Rep. Lamar Smith (TX).

Facebook runs afoul of California’s Right of Publicity Law by use of subscriber ‘likes’ for ads
Ice Miller LLP January 13 2012
Internet entrepreneurs and software programmers are used to dealing with patent, trademark and copyright issues when plying their trade in cyberspace, but it’s fairly certain that few worry much about Right of Publicity Law.

Oops! While you were in the hospital, we may have infringed on your rights: design firm faces lawsuit after using employee’s private Facebook and Twitter accounts
Ice Miller LLP January 11 2012
The line between an employee’s personal social media account and an employer owned account is not always clear.

Delivering a virtual litigation support platform
Nelson Mullins Riley & Scarborough LLP January 3 2012
In any large organization, managing data and applications is a daunting challenge.

Employee Benefits & Pensions

Agencies outline plans for issuing rules under Affordable Care Act
Littler Mendelson January 31 2012
On January 20, 2012 various federal agencies released their regulatory agendas for the coming year.

Framing the certification opposition - Ross v. RBS Citizens NA
McGuireWoods LLP January 31 2012
Today's case is a perfect illustration of the difference between tactics and strategy, or, more accurately, between litigation strategy and litigation grand strategy.

U.S. Department of Labor cracks down on MEWAs
Epstein Becker Green January 31 2012
On December 6, 2011, the U.S. Department of Labor issued a proposed rule on Form M-1 filing requirements, a proposed rule on DOL ex parte cease and desist orders, a notice of proposed form revision to Form M-1 and a notice of proposed form revision to Form 5500 implementing new requirements for multiple employer welfare arrangements under the Patient Protection and Affordable Care Act.

PBGC provides guidance on funding-related reportable events for 2012 plan years
Reinhart Boerner Van Deuren SC January 30 2012
The Pension Benefit Guaranty Corporation (PBGC) issued Technical Update 11-1, providing guidance on complying with the reportable event requirements of ERISA section 4043 for plan years beginning in 2012.

DOL advises that pension contributions made from a labor management cooperation trust fund are not prohibited transactions
Reinhart Boerner Van Deuren SC January 30 2012
In Advisory Opinion 2011-10A, the DOL considered whether contributions from a labor management cooperation trust fund to a multi-employer pension plan were prohibited transactions under section 406 of ERISA.

Advance copies of 2011 Form 5500 released
Reinhart Boerner Van Deuren SC January 30 2012
The DOL, IRS and the PBGC jointly released advance informational copies of the 2011 Form 5500 annual return/report and related instructions.

IRS releases 2011 Form 8941 for Small Business Health Care Tax Credit
Reinhart Boerner Van Deuren SC January 30 2012
Employers that pay average wages of less than $50,000 per year and have less than 25 full-time employees may be eligible for a tax credit under PPACA, which is designed to encourage small employers to offer health insurance coverage for the first time or maintain existing coverage.

DOL revises electronic disclosure policy for participant-level fee disclosures
Reinhart Boerner Van Deuren SC January 30 2012
On December 8, 2011, the Department of Labor (DOL) issued Technical Release 2011-03R, which revises and restates Technical Release 2011-03 previously issued on September 13, 2011.

HHS provides additional guidance on health plan coverage of contraceptive services by nonprofit religious employers
McDermott Will & Emery January 30 2012
The Patient Protection and Affordable Care Act (PPACA) requires non-grandfathered group health plans to provide coverage for certain preventive services on a first dollar basis (i.e. without deductibles, co-payments, co-insurance or other cost-sharing).

IRS provides guidance on W-2 reporting of health care costs
Reinhart Boerner Van Deuren SC January 30 2012
PPACA requires employers to include the aggregate cost of applicable employer-sponsored health coverage on Form W-2 beginning with the 2012 tax year (Forms W-2 issued in January 2013).

HHS provides guidance on defining essential health benefits under PPACA
Reinhart Boerner Van Deuren SC January 30 2012
On December 16, 2011, the Department of Health and Human Services' (HHS) Center for Consumer Information and Insurance Oversight issued its proposed method for defining essential health benefits under the Patient Protection and Affordable Care Act (PPACA).

HHS and DOL issue guidance on medical loss ratio rebates
Reinhart Boerner Van Deuren SC January 30 2012
HHS issued final regulations on PPACA's medical loss ratio (MLR) requirements for health insurers, which amend the December 2010 interim final regulations.

Medicare Part D creditable coverage disclosure to CMS due by March 1, 2012, for calendar-year plans
Reinhart Boerner Van Deuren SC January 30 2012
Under Medicare Part D regulations, most group health plans offering prescription drug coverage to Part D eligible individuals must annually disclose to the Centers for Medicare & Medicaid Services (CMS) whether the coverage is creditable or non-creditable.

ERISA blocks NFL players’ claims
Alston & Bird LLP January 30 2012
On December 28, 2011, the United States District Court for the District of Colorado blocked a chiropractor’s attempt to recover benefits for providing services to NFL players and their families under a new Colorado statute, holding the provider's claims were preempted by ERISA.

HHS issues final regulation on CO-OP program
Reinhart Boerner Van Deuren SC January 30 2012
On December 13, 2011, HHS issued a final regulation implementing the Consumer Operated and Oriented Plan (CO–OP) provisions of PPACA.

PBGC changes administrative policy to reject amended premium filings based on recharacterization of plan year for contributions
Reinhart Boerner Van Deuren SC January 30 2012
On December 22, 2011, the PBGC issued a policy statement ending its current practice of permitting refunds of premiums for amended premium filings when an employer recharacterizes contributions as attributable to the prior plan year.

2010 Medicare Part D subsidy reconciliation due April 2, 2012, for calendar-year plans
Reinhart Boerner Van Deuren SC January 30 2012
A plan sponsor that applied for the Medicare Part D Retiree Drug Subsidy must file a reconciliation with CMS no later than 15 months after the end of the plan year, which is April 2, 2012, for the plan year ending December 31, 2010.

DOL proposes increased reporting and enforcement for MEWAs
Reinhart Boerner Van Deuren SC January 30 2012
On December 6, 2011, the DOL proposed two rules pursuant to provisions and new authorities established under PPACA to protect workers and small businesses from health care fraud relating to multiple employer welfare arrangements (MEWAs).

Participants’ access to quality investment advice may continue to be limited under the DOL’s final investment advice regulation
Schulte Roth & Zabel LLP January 27 2012
The Department of Labor has issued a final regulation intended to permit investment providers to impart investment advice to retirement plan participants and IRA beneficiaries.

New York’s Marriage Equality Act and its effect on welfare and pension benefits
Schulte Roth & Zabel LLP January 27 2012
In June 2011, Governor Andrew Cuomo signed the Marriage Equality Act into law, making New York the sixth state to permit same-sex couples to marry.

Guidance on new W-2 reporting requirement for health coverage cost
Sidley Austin LLP January 27 2012
In our recent client alert, “2012 On The Horizon – Employee Benefit Action Items,” dated October 28, 2011, we noted that employers will need to begin reporting the cost of each employee’s group health plan coverage on Form W-2.

Court denies plaintiffs’ attorneys’ claim for fees in ERISA action
Schulte Roth & Zabel LLP January 27 2012
International Ladies’ Garment Workers’ Union Death Benefit Fund, the UNITE HERE Staff Retirement Plan, their fiduciaries, Amalgamated Services Corp., Amalgamated Life Insurance Co., Alicare Inc. and individual defendant Michael Hirsch against a claim for more than $1.7 million in attorneys’ fees stemming from an ERISA action.

Pennsylvania court holds that trustees may file mechanics’ lien to obtain delinquent contributions to health and pension funds
Littler Mendelson January 27 2012
In Bricklayers of Western Pennsylvania Combined Funds, Inc. v. Scott’s Development Company, [pdf.] an en banc panel of the Superior Court of Pennsylvania held that the trustees of employee benefit funds may assert mechanics’ liens against a property owner to recoup delinquent contributions owed by a contractor.

ERISA preemption of Michigan Paid Claims Assessment Act
Faegre Baker Daniels January 26 2012
We previously posted regarding Michigan’s Paid Claims Assessment Act (the “Act”) which assesses carriers a 1% surcharge on paid health claims.

Prepare for health plan participant fee
Dorsey & Whitney LLP January 26 2012
Under health care reform, plan sponsors of self-funded health plans and health insurance issuers will owe a new fee that is first payable for plan years ending after September 30, 2012.

CMS finalizes rules on payments to retiree prescription drug plan sponsors
Reed Smith LLP January 25 2012
The Centers for Medicare & Medicaid Services (CMS) has published a final rule that implements provisions regarding the reporting of gross covered retiree plan-related prescription drug costs and retained rebates by Retiree Drug Subsidy (RDS) sponsors.

Capturing rollovers
Drinker Biddle & Reath LLP January 24 2012
This article examines statements made by the Department of Labor (DOL) regarding distributions and rollovers from qualified plans to IRAs.

A look at case law for important plan documentation reminders
Ice Miller LLP January 24 2012
Two important cases provide good reminders to plan fiduciaries about (1) the importance of documentation of fiduciary processes, and (2) accurate communication of plan design changes to participants and beneficiaries.

A vested right to retiree health benefits may be implied from a county ordinance or resolution
Seyfarth Shaw LLP January 23 2012
In Retired Employees Assn. of Orange County, Inc. v. County of Orange, 52 Cal. 4th 1171 (Cal. 2011), an employee association filed a lawsuit in the federal court contesting the validity of certain changes that Orange County California made to health benefits for retired employees.

Employees' claims for unpaid medical benefits not "loss" under company's fiduciary liability policy
Wiley Rein LLP January 19 2012
The United States District Court for the Southern District of West Virginia has held that employees’ claims for unpaid medical benefits arising from the mismanagement of a company’s benefits plan constituted “benefits due” and therefore were carved out from the definition of “loss” in the entity’s fiduciary liability policy.

Employment & Labor

Wash his mouth out with soap!
Fisher & Phillips LLP February 1 2012
The National Labor Relations Board under the Obama Administration has been in the news quite a bit lately.

USERRA expanded to include hostile work environment claims
Ford & Harrison LLP February 1 2012
On November 21, 2011, President Obama signed into law the VOW to Hire Heroes Act of 2011.

OFCCP issues proposed revisions to Section 503 regulations
Briggs and Morgan January 31 2012
On December 9, 2011, the Office of Federal Contract Compliance Programs (OFCCP) published a notice of proposed rulemaking regarding the disability discrimination regulations implementing Section 503 of the Rehabilitation Act.

A moving target: the California DLSE modifies again its FAQs on California's new wage notice required for hourly employees
Littler Mendelson January 31 2012
On January 23, 2012, the California Division of Labor Standards Enforcement (DLSE) announced on its website modifications to the answers to two of its Frequently Asked Questions (FAQs), and added 10 new FAQs and answers concerning the wage notice required by the California Wage Theft Prevention Act (WTPA) in Labor Code section 2810.5.

Harris v. Superior Court, (Cal. Sup. Ct., Dec. 29, 2011)
Orrick Herrington & Sutcliffe LLP January 30 2012
The California Supreme Court issued its long-awaited decision interpreting the administrative exemption in Harris v. Super. Ct. last month.

Court expands FMLA coverage beyond the definition of "eligible employee"
Hunton & Williams LLP January 30 2012
Many large employers no doubt thought they could ignore the Family and Medical Leave Act (FMLA) for any employee who had yet to reach his anniversary date.

NLRB report: employers' social media policies must be narrow, must not restrict right to engage in protected activities
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 30 2012
The National Labor Relations Board released a report providing important guidance to employers on drafting social media policies that comply with its interpretation of labor laws.

Virginia bill proposes to ban most non-competes
Seyfarth Shaw LLP January 30 2012
Although Virginia is already generally hostile to non-competition agreements, enforcing only those that are very limited in function, geographic scope, and duration, a bill has been proposed in the 2012 session of the Virginia General Assembly that would severely restrict the enforceability of non-compete agreements.

Update on Brinker/Brinkley
Orrick Herrington & Sutcliffe LLP January 30 2012
On November 8, 2011, the Supreme Court heard oral argument on the standard for providing meal breaks, among other issues, in the long-awaited Brinker case.

Audit tip of the quarter
Orrick Herrington & Sutcliffe LLP January 30 2012
With the passing of the Wage Theft law in California, employers should take the time to ensure their forms for California and New York are compliant, and revisit their retention schedules for payroll records.

EEOC announces enforcement statistics and priorities
Foley & Lardner LLP January 30 2012
Last week, the EEOC released final statistics for the fiscal year ended September 30, 2011 and has issued a draft strategic plan that highlights a particular emphasis on pursuing systemic bias cases.

Union must prove changed circumstances to overcome bargaining impasse
Foley & Lardner LLP January 30 2012
On January 20, 2012, a federal court slapped down the NLRB for insisting that an employer must “test the Union’s stated willingness to move” after impasse is reached.

DOL releases proposed rule implementing FMLA amendments expanding leave entitlement for military caregivers and flight crew members
Littler Mendelson January 30 2012
The Department of Labor has released a proposed rule that implements the Family and Medical Leave Act (FMLA) amendments made by the National Defense Authorization Act for FY 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act.

Arnold v. Mutual of Omaha Ins., (Cal. Ct. App. Dec. 30, 2011)
Orrick Herrington & Sutcliffe LLP January 30 2012
In Arnold, a nonexclusive insurance agent filed a class action complaint against Mutual of Omaha on the grounds that Mutual failed to reimburse insurance agents for necessary business expenses and other related claims.

Senate Bill 459 penalizes willful misclassification of independent contractors
Orrick Herrington & Sutcliffe LLP January 30 2012
Effective January 1, 2012, employers will be subject to civil penalties for willful misclassification of independent contractors under new California Labor Code sections 226.8 and 2753.

Appellate Court sheds light on California Commissioned Employees Exemption
Seyfarth Shaw LLP January 30 2012
On January 24, 2012, the California Court of Appeal in Muldrow v. Surrex Solutions Corp. held that preliminary activities such as cold calling, searching for viable candidates, interviewing candidates, and inputting data are all essential sales duties, and therefore relevant to determining whether an employee is principally engaged in selling for purposes of the California commissioned employees exemption.

California Court of Appeal finds employees are exempt under California's commissioned sales exemption
Littler Mendelson January 30 2012
On January 24, 2012, the California Court of Appeal, Fourth Appellate District, issued an important decision providing new and needed guidance on the commissioned sales exemption.

DLSE issues revised FAQs regarding required wage notice
Mitchell Silberberg & Knupp LLP January 30 2012
The California Wage Theft Prevention Act (WTPA), which became effective on January 1, 2012, requires private-sector employers to provide a written wage notice “at the time of hiring” to nonexempt employees (excluding most employees who are covered by a collective bargaining agreement.).

Wage Theft Prevention Act of 2011 imposes substantial notice requirements on California employers
Orrick Herrington & Sutcliffe LLP January 30 2012
Perhaps the most burdensome of California's new laws, Assembly Bill 469 (known as, "The Wage Theft Prevention Act of 2011") requires, as of January 1, 2012, that California private employers provide written notice to all newly hired non-exempt employees.

NLRB delays until April 30, 2012 new rule requiring you to advise your employees of their right to unionize
Neal Gerber & Eisenberg LLP January 30 2012
On Oct. 5, 2011, the National Labor Relations Board (“NLRB”) postponed the effective date of its highly controversial new rule requiring private employers to inform their employees of their right to form and support a union.

New Jersey adopts federal white collar exemptions
Orrick Herrington & Sutcliffe LLP January 30 2012
On September 6, 2011, New Jersey repealed its existing state regulations defining overtime exemptions and expressly adopted the exemptions for administrative, executive, professional, outside sales, and computer employees as defined by federal regulations (29 C.F.R. Part 541) interpreting the Fair Labor Standards Act.

Innovative solutions for employers: litigating employment class actions where plaintiff files for bankruptcy
Orrick Herrington & Sutcliffe LLP January 30 2012
A silver lining to the great recession is that employers may be able to knock the wind out of class actions where the proposed class representative has filed for bankruptcy and failed to disclose his or her pending wage-and-hour or other employment claims.

Court may not reduce statutory fee award simply because attorney is keeping both statutory and contingent fee
Kelley Drye & Warren LLP January 30 2012
Danielle Pickett’s retaliation claim against her former employer, Sheridan Health Care Center, was tried to a jury.

DOL proposes new FMLA revisions
Kilpatrick Townsend & Stockton LLP January 30 2012
Today the Department of Labor issued proposed revisions to the FMLA regulations.

Mork v. Loram Maint. of Way, Inc., (D. Minn. Jan. 9, 2012)
Orrick Herrington & Sutcliffe LLP January 30 2012
In Mork, the District Court of Minnesota held that an employee could pursue an FLSA collective arbitration, even though the arbitration agreement was silent on whether collective or class arbitration was permissible.

"Getting the most bang for the buck" - the EEOC outlines its strategic plan to target systemic discrimination claims over the next four years
Seyfarth Shaw LLP January 30 2012
The U.S. Equal Employment Opportunity Commission recently published its Draft Strategic Plan For Fiscal Years 2012 - 2016.

Foreshadowing a new trend OSHA files another action seeking enterprisewide relief from an employer
Seyfarth Shaw LLP January 30 2012
The Occupational Safety and Health Administration (OSHA) has recently filed a complaint with the Occupational Safety and Health Review Commission (OSHRC) which it asserts “marks the second such time that the department has expressly sought enterprisewide relief from an employer.”

New York's Wage Theft Prevention Act requires notice to employees
Ford & Harrison LLP January 30 2012
On or before February 1, 2012, New York employers must provide notice to employees as required by the state's Wage Theft Prevention Act (WTPA).

Is rounding of employee time entries legal in California?--California Supreme Court orders appellate court to decide
Littler Mendelson January 30 2012
In a matter of significance for California employers, in See’s Candy Shops, Inc. v. Superior Court of San Diego, the California Supreme Court recently ordered the California Court of Appeal, Fourth Appellate District, to review a trial court decision holding that rounding employee time entries violated California law.

Civil unions and the workplace: what Illinois employers need to know about civil unions
Neal Gerber & Eisenberg LLP January 30 2012
2012 is the first full year that the “Illinois Religious Freedom Protection and Civil Union Act,” commonly referred to as the Illinois Civil Union Law, is in effect.

New law requires written commission contracts for California employees
Orrick Herrington & Sutcliffe LLP January 30 2012
Pursuant to Assembly Bill 1396, effective January 1, 2013, any California employee who works on commission (in whole or in part) must have a written commission contract that sets forth the method by which the commissions shall be computed and paid.

Aleman v. Airtouch Cellular, (Cal. Ct. App. Dec. 21, 2011)
Orrick Herrington & Sutcliffe LLP January 30 2012
The California Court of Appeal held that employees are not entitled to reporting time pay when they attend a scheduled work meeting lasting less than two hours.

Reports: FMLA regulatory changes to be announced later today regarding military family leave?
Franczek Radelet PC January 30 2012
Various news outlets and web sites, including the Washington Post, Fox News and MilitaryFamily.com, have reported that the Department of Labor will propose various changes today to Family and Medical Leave Act regulations regarding military family leave.

NLRB Chairman says he will push for additional election rule changes
Littler Mendelson January 30 2012
In keeping with information published as part of the National Labor Relations Board’s unified agenda for the coming year, Board Chairman Mark Gaston Pearce told the Associated Press that he intends to push for additional sweeping changes to the union representation election process that would make it easier for unions to organize.

Can you pass "the acid test?"
Fox Rothschild LLP January 29 2012
The term “acid test” was reputedly coined during the gold rush, when prospectors used nitric acid on their findings to determine if what they found was really gold.

U.S. Department of Labor releases three fact sheets regarding retaliation
Bond Schoeneck & King January 29 2012
Recently, the U.S. Department of Labor's Wage and Hour Division released three new Fact Sheets on unlawful retaliation under the Fair Labor Standards Act ("FLSA"), the Family and Medical Leave Act ("FMLA"), and the Migrant and Seasonal Agricultural Worker Protection Act ("MSPA").

Posting deadline for OSHA injury & illness report approaches
Littler Mendelson January 28 2012
The Occupational Safety and Health Administration (OSHA) requires that each year on February 1 employers covered by the Injury and Illness Recordkeeping Rules (29 C.F.R. §§ 1904.0 et seq.) post the official summary of all injuries and illnesses occurring in the previous year.

B Corporations
Fox Rothschild LLP January 28 2012
On January 1, 2012, a new form of doing business was born in California.

Trend for 2012: regular rate of pay
Fox Rothschild LLP January 27 2012
What to expect for 2012?

Pharmaceutical sales representatives get $99 million in overtime from Novartis
Fox Rothschild LLP January 27 2012
On January 24, 2012, the Southern District of New York preliminarily approved a settlement in In Re: Novartis Wage and Hour Litigation, which will pay pharmaceutical sales representatives (“Sales Reps”) $99 million.

Settlement highlights importance of considering state law in assessing employment practices
Littler Mendelson January 27 2012
Last week, in Meeks v. Allen Memorial Hospital, a state court in Iowa approved a $2 million settlement in a race discrimination class action against an Iowa hospital.

Private sector EEOC charges reached record high in 2011
Littler Mendelson January 27 2012
According to the newly-released enforcement and litigation statistics, private sector employees filed a record number of charges with the Equal Employment Opportunity Commission in 2011.

How employers faced with potential False Claims Act liability may avoid liability for whistleblower retaliation
Foley & Lardner LLP January 27 2012
Under the False Claims Act, a private whistleblower can bring suit on behalf of the federal government to recover funds fraudulently obtained from the government.

When “letting off steam” becomes protected activity under the FLSA
Womble Carlyle Sandridge & Rice PLLC January 27 2012
The Fourth Circuit Court of Appeals today held that an employee who complains to her employer about alleged violations of the Fair Labor Standards Act is protected from retaliatory action from the employer.

Employers beware: broad protections of employees’ social media posts
Schulte Roth & Zabel LLP January 27 2012
Within the past year alone, almost 100 complaints implicating social media have been filed with the National Labor Relations Board.

EEOC reports record number of discrimination charges
Ford & Harrison LLP January 27 2012
According to information released by the Equal Employment Opportunity Commission (EEOC), in 2011 the agency received a record number of discrimination charges and obtained a record amount of relief for discrimination claimants.

NLRB election process rulemaking: it's not over until it's over
Vorys Sater Seymour and Pease LLP January 27 2012
The NLRB published a final rule on the election process late last year.

VA Supreme Court holds competition not necessary for Virginia trade secret claims
Williams Mullen January 27 2012
On January 13, 2012, the Supreme Court of Virginia issued an opinion in Anthony Collelo v. Geographic Services, Inc., affirming in part, reversing in part, and remanding the case for a new trial on claims under the Virginia Uniform Trade Secrets Act (“Trade Secrets Act”).

DOL's "Right-to-Know" rulemaking gets tabled
Seyfarth Shaw LLP January 27 2012
For the past two years or so, perhaps the most anticipated rulemaking in the wage and hour world has been what has been described at various times as the "FLSA Recordkeeping" or "Right-to-Know" rulemaking.

"100% healed" policy is not a per se ADA violation
Kelley Drye & Warren LLP January 27 2012
USF Holland is a large regional trucking company.

"Right to know" rule not likely in 2012
Franczek Radelet PC January 27 2012
For roughly the last two years, the U.S. Department of Labor has been contemplating (some would say "threatening") revisions to the recordkeeping regulations under the Fair Labor Standards Act that would require an employer who classifies an employee as exempt to prepare a written justification of the basis for the exemption.

Healthcare employer's button & off-duty access policies violated NLRA
Littler Mendelson January 26 2012
Most hospital visitors have seen them – from nursing school pins to pictures of children, from advanced designations to "special messages" – and most healthcare providers allow them in some form.

Five 2011 FMLA cases that give guidance to employers in 2012
Hunton & Williams LLP January 26 2012
Despite its enactment nearly two decades ago, the Family and Medical Leave Act (FMLA) continues to evolve through judicial interpretation.

Do you know what your employment practices liability insurance covers?
Roetzel & Andress January 26 2012
You might be surprised to find out what your employment practices liability insurance (EPL) covers or, more importantly, what it does not cover.

DLSE revises wage notice FAQs-- more bad news for employers
Seyfarth Shaw LLP January 26 2012
Beginning January 1, 2012, the Wage Theft Protection Act (Assembly Bill 469) requires California employers to provide notices to all new hires that include specific information.

Another case to watch in the ongoing debate over the Computer Fraud & Abuse Act
Fisher & Phillips LLP January 26 2012
The past year has produced noteworthy decisions from the Sixth, Ninth and Eleventh Circuit Courts of Appeals – and recent Congressional hearings – regarding the applicability of the Computer Fraud & Abuse Act (“CFAA”) to employers’ claims that disloyal employees accessed their employers’ computers in order to take trade secrets, source code, and other valuable electronically stored information.

NY employers: are you ready for February 1 deadline?
Moses & Singer LLP January 26 2012
As noted in prior Moses & Singer Client Alerts, the New York Wage Theft Prevention Act requires all employers doing business in New York to give their employees certain information about their wages in writing on or before February 1, 2012.

Indiana set to become 23rd right-to-work state
Greenberg Traurig LLP January 26 2012
On Wednesday, January 25, the Indiana House of Representatives passed legislation that would make Indiana the 23rd state to adopt a law that prohibits employers from forcing employees to become members of a union or to pay union dues.

The proper standard of proof in FMLA interference cases
Squire Sanders January 26 2012
On January 17, 2012, nearly twenty years after the introduction of the Family and Medical Leave Act (“FMLA”), the Sixth Circuit clarifies the proper standard of proof for FMLA interference claims by applying the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

NLRB issues social media update
Roetzel & Andress January 26 2012
On January 24, 2012, the National Labor Relations Board Acting General Counsel, Lafe Soloman, issued a new report on unfair labor practice cases involving employee use of social media and employers’ social media policies.

Secretary's reasoned decision was not "arbitrary or capricious"
Kelley Drye & Warren LLP January 26 2012
The federal Medicare program reimburses hospitals for the care they provide to eligible patients.

How costly can FLSA collective actions be? . . . Very
Bricker & Eckler LLP January 26 2012
On January 25, 2012 a federal district court in New York preliminarily approved a proposed settlement of a wage and hour collective action against Novartis Pharmaceuticals Corp.

Retaliation: 2012 and beyond
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 26 2012
Retaliation claims are here to stay.

Healthcare employers may not selectively prohibit union insignia in patient care areas
Littler Mendelson January 25 2012
Most hospital visitors have seen them – from nursing school pins to pictures of children, from advanced designations to "special messages" – and most healthcare providers allow them in some form.

Class action suit proceeds against Ohio BWC for alleged overcharging of nongroup-rated employers
Roetzel & Andress January 25 2012
A class action lawsuit currently pending in the Cuyahoga County Court of Common Pleas alleges that the Ohio Bureau of Workers' Compensation (BWC) charged excessive workers' compensation premium rates to employers who were not able to participate in Ohio's group rating program.

Court rejects FEHA claim brought by employee fired for allegedly filing false harassment complaint
Ogletree Deakins January 25 2012
Earlier this week, a state appellate court held that an employee failed to introduce substantial evidence under the Fair Employment and Housing Act (FEHA) that his employer’s decision to terminate his employment was motivated by retaliatory animus.

Indiana house passes right-to-work bill
Faegre Baker Daniels January 25 2012
Indiana has taken a significant step toward becoming the nation's twenty-third right-to-work state.

Additional guidance on Wage Theft Protection Act notice
Fox Rothschild LLP January 25 2012
When I was first writing about new employment laws for 2012, the notice provisions of the Wage Theft Protection Act seemed pretty dull.

Lessons to be learned from another successful defense of an Assistant Manager class action
Fox Rothschild LLP January 25 2012
I have written several times about Assistant Manager class actions being quite difficult to defend because these employees often perform a great deal of “subordinate” type work, making the issue of “primary duty” a tricky one.

Deadline fast approaching – employers must provide New York Wage Theft Prevention Act notices to all New York employees by February 1, 2012
Orrick Herrington & Sutcliffe LLP January 25 2012
Effective April 9, 2011, the New York Wage Theft Prevention Act requires that, each year between January 1 and February 1, all private sector employers provide every employee who works in New York (including those exempt from overtime) with written notice of: the employee's regular rate of pay.

Pending labor case may undermine Cordray appointment
Ballard Spahr LLP January 25 2012
As Alan Kaplinsky recently noted, a challenge brought against the NLRB could well become an indirect vehicle for calling into question the validity of President Obama’s recess appointment of Richard Cordray to head the CFPB.

DOL regulatory update
Kilpatrick Townsend & Stockton LLP January 25 2012
DOL recently released its 2012 regulatory agenda, with a few interesting items emerging.

More rest time required for commercial motor vehicle drivers
Porter Wright Morris & Arthur LLP January 25 2012
The United States Department of Transportation ("Department") has issued an Hours-of-Service ("HOS") Final Rule, that is meant to reduce the excessively long work hours of Commercial Motor Vehicle ("CMV") drivers.

The language of lockout
Littler Mendelson January 25 2012
One tenet of NLRB case law is that an employer’s use of permanent replacements renders a lockout in support of its bargaining position unlawful.

What employers should know about the Supreme Court’s decision concerning GPS privacy rights
Briggs and Morgan January 25 2012
In United States v. Jones, the United States Supreme Court addressed the question of whether the government violated the Fourth Amendment’s prohibition against unreasonable searches and seizures when it attached a Global Positioning System tracking device on a vehicle registered to a criminal defendant’s wife and monitored the vehicle’s movements for four weeks.

Imminent compliance deadline approaching for New York state employers
Arent Fox LLP January 25 2012
The New York Wage Theft Prevention Act took effect on April 9, 2011.

When the EEOC speaks, employers are well-served to listen...
Seyfarth Shaw LLP January 25 2012
Today I had the honor of speaking on workplace class action litigation developments at the American Conference Institute's 17th Annual EPLI Program in New York City.

Employer discipline of an employee who files an unfounded complaint of harassment not necessarily unlawful retaliation
Seyfarth Shaw LLP January 25 2012
It is unlawful for an employer to retaliate against an employee for engaging in a protected activity such as reporting harassment.

"Effectively recommend" dissected
Littler Mendelson January 25 2012
In a line of decisions known as the Kentucky River cases, the Board took aim at re-defining “assign,” “responsibly to direct,” and “independent judgment” in Section 2(11) of the NLRA as it relates to supervisory status.

Courage or folly? Superior Court awards significant attorney’s fees against a defeated trade secret plaintiff
Weintraub Genshlea Chediak Law Corporation January 25 2012
It is sometimes difficult to distinguish arrogance or hubris from their close cousin, courage and perseverance.

USDOL FMLA forms have "expired"
Porter Wright Morris & Arthur LLP January 25 2012
We have been receiving questions lately from clients and friends regarding the continued validity of the Department of Labor's FMLA forms.

First Circuit revives industry group's challenge to Massachusetts independent contractor statute
Seyfarth Shaw LLP January 25 2012
A recent ruling from the First Circuit Court of Appeals captioned Massachusetts Delivery Association v. Coakley has important implications for industry groups representing employers that find themselves embattled in wage and hour litigation regarding widespread industry practices.

"Fatally flawed statistically and therefore unreasonable" Armed Services Board finds DCAA executive compensation review methodology defenseless
Wiley Rein LLP January 24 2012
In a decision dated January 18, 2012, the Armed Services Board of Contract Appeals agreed with the Appellant that the Defense Contract Audit Agency (DCAA) method for analyzing the reasonableness of executive compensation under FAR 31.205-6 was subject to "statistical flaws" which rendered Government affirmative claims of nearly $600,000 untenable.

Court rules Pennsylvania Trade Secrets Act entitles defendants to attorneys' fees for bad faith misappropriation claim
Seyfarth Shaw LLP January 24 2012
In a matter of first impression, Judge William Standish of the Western District of Pennsylvania ruled in Best Medical Int’l, Inc. v. Spellman, 07-cv-01709-WLS, 2011 U.S. Dist. LEXIS 147853 (W.D. Pa. Dec. 22, 2011), that, pursuant to the Pennsylvania Uniform Trade Secrets Act (“PUTSA”), a defendant may recover attorneys' fees against a plaintiff where the plaintiff filed an objectively specious misappropriation of trade secrets claim and subsequently engaged in subjective misconduct during the course of discovery.

Time to fix your arbitration agreements
Masuda Funai Eifert & Mitchell Ltd January 24 2012
The National Labor Relations Board issued a potentially far-reaching decision on January 6, 2012.

Reminder: include GINA "safe harbor" language in FMLA forms
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 24 2012
Employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors to covered employers, must comply with the Family and Medical Leave Act (“FMLA”).

EEOC expands company-wide scrutiny of hiring and job assignment practices
Edwards Wildman Palmer LLP January 24 2012
The federal Equal Employment Opportunity Commission (EEOC) recently announced that it plans to expand and devote additional resources to its “systemic discrimination enforcement initiative.”

Certification of call center class given the boot
Seyfarth Shaw LLP January 24 2012
On January 20, 2012, Magistrate Judge Paul E. Davison of the Southern District of New York recommended decertifying the off-the-clock FLSA claims of 40 current and former IBM call-center representatives in Seward v. IBM.

Retail detail: all California employers, including retailers, are required to issue new wage notices to employees as of January 1, 2012
Seyfarth Shaw LLP January 24 2012
On October 9, 2011, Governor Brown signed the Wage Theft Protection Act (Assembly Bill 469).

News from the National Labor Relations Board
Masuda Funai Eifert & Mitchell Ltd January 24 2012
On January 4, 2012, President Obama appointed three new members to the National Labor Relations Board, without waiting for the United States Senate to approve his nominees.

A tale of two arbitrations
McGuireWoods LLP January 24 2012
Those who argue that AT&T v. Concepcion killed the class action must be having an interesting January.

Bill introduced in the New York State Legislature to repeal the WTPA annual notice requirement
Bond Schoeneck & King January 24 2012
A bill has been introduced in the New York State Legislature that would, if enacted, repeal the annual wage notice requirement imposed by the Wage Theft Prevention Act ("WTPA").

Labor and employment law 2011: a year-end in review
Mitchell Silberberg & Knupp LLP January 24 2012
The following is a review of important labor and employment developments in 2011 and a look forward to important issues pending for 2012.

Pancake House’s flippant handling of complaints results in substantial jury verdict
Masuda Funai Eifert & Mitchell Ltd January 24 2012
A recent opinion handed down by the Seventh Circuit Court of Appeals serves as a good reminder to employers that having a policy against sexual harassment and training all new hires will not effectively protect the company if managers ignore or mishandle harassment complaints.

New York employers have until February 1, 2012, to provide all employees with annual wage notice
Duane Morris LLP January 24 2012
As we reported in a Duane Morris Alert last March, all New York employers are required to provide all employees by February 1, 2012, a written notice containing specific information about the employee's wages.

Agencies issue information on regulatory priorities for 2012
Littler Mendelson January 24 2012
Federal agencies, including the U.S. Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC), and National Labor Relations Board (NLRB) have issued their regulatory plans and agendas for 2012.

Court refuses to approve collective action settlement without disclosure of terms
Baker & Hostetler LLP January 24 2012
Confidentiality provisions in employment settlements are routine, but they can be problematic in the context of the settlement of a class or collective action.

Take 5: views you can use
Epstein Becker Green January 24 2012
The first two months of the year are a good time for employers to do a quick "tech check" to make sure that they have a firm grip on some important current issues.

What does the Supreme Court's "GPS decision" mean for private employers?
Littler Mendelson January 24 2012
The Supreme Court ruled unanimously yesterday that law enforcement must obtain a search warrant before placing a Global Positioning System (GPS) device on a suspect’s vehicle for purposes of tracking the vehicle’s location.

Justices deny review of pplebee's tip Acredit ruling
Franczek Radelet PC January 24 2012
In May, my partner Staci reported on a ruling against Applebee's by the 8th Circuit Court of Appeals, holding that tipped employees who spent more than 20 percent of their working time on nontipped activities like cleaning restrooms were entitled to the federal minimum wage of $7.25 per hour.

Sixth Circuit finds bad faith in employer's FMLA termination
Squire Sanders January 23 2012
The Sixth Circuit ruled last Friday in favor of Carl Thom in his claim under the Family Medical Leave Act (FMLA) against American Standard, Inc. Thom v. American Standard, Inc., Case No. 07-00294.pdf

New York limits provider spending for executive compensation and administrative costs
Edwards Wildman Palmer LLP January 23 2012
On January 18, 2012, New York Governor Andrew M. Cuomo signed an Executive Order limiting spending by state-funded healthcare service providers for executive compensation and administrative costs.

Is it legal to deduct credit card processing fees from gratuities paid to tipped employees?
Briggs and Morgan January 23 2012
Yes – deducting credit card processing fees from gratuities paid to tipped employees is generally permissible under both the federal Fair Labor Standards Act (FLSA) and Minnesota law.

NLRB takes another step toward allowing several mini-unions in a single facility
Faegre Baker Daniels January 23 2012
In August 2011, the National Labor Relations Board (Board) issued its Specialty Healthcare decision, which set forth a new approach for determining what constitutes an appropriate bargaining unit in health care facilities and industries other than acute care hospitals.

EEOC releases and seeks comment on draft Strategic Plan
Littler Mendelson January 23 2012
The U.S. Equal Employment Opportunity Commission (EEOC) has issued a draft copy of its Strategic Plan for fiscal years 2012-2012, and is soliciting public comment before the five-year plan is finalized.

U.S. Supreme Court holds ministerial exception is defense to employment discrimination claims
Epstein Becker Green January 23 2012
Religious organizations and those they employ have anticipated guidance from the U.S. Supreme Court's first opinion addressing the ministerial exception in the employment discrimination context.

In a landmark decision, the Supreme Court exempts “churches” from most employment discrimination statutes affecting “ministers”
Foley & Lardner LLP January 23 2012
The First Amendment of the United States Constitution (U.S. Const. amend. I) provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

New York State Wage Theft Prevention Act notice requirement
Sheppard Mullin Richter & Hampton LLP January 23 2012
We write to remind you of your obligation to provide your New York State based employees with a written notice and acknowledgement of pay rate and payday in compliance with the New York State Wage Theft Prevention Act, as detailed below.

D.R. Horton, Inc.: the NLRB weighs in on employment class action waivers
Orrick Herrington & Sutcliffe LLP January 23 2012
In its landmark 2011 decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) ("Concepcion"), the U.S. Supreme Court upheld the validity of class action waiver provisions in consumer arbitration agreements under the Federal Arbitration Act ("FAA").

Scalia v. Aldi -- a mixed bag for employers
Porter Wright Morris & Arthur LLP January 23 2012
The Ohio Court of Appeals for the Ninth Appellate District recently issued a decision that has potential to create more questions than answers when it comes to workers' compensation retaliation and disability discrimination law in Ohio.

California Court of Appeal green lights repetitive class action litigation
Reed Smith LLP January 23 2012
Most employers assume that if they successfully defeat a plaintiff’s motion for class certification in a wage and hour class action, the same class claims cannot be raised again in another case.

OSHA issues I2P2 white paper and moves forward with small business review
Ogletree Deakins January 23 2012
OSHA kicked off the New Year by reaffirming its commitment to the development of an Injury and Illness Prevention Program standard, commonly referred to as I2P2.

NLRB: when we say it must be "overwhelming" we mean the other overwhelming
Proskauer Rose LLP January 22 2012
As 2011 came to a close, no one was certain whether the NLRB would continue to function into 2012 as Member Becker's recess appointment came to an end, leaving only two Members.

Recent California Court of Appeal decision makes it harder to fight copycat class actions
Seyfarth Shaw LLP January 20 2012
The California Court of Appeal has issued a published decision holding that denial of class certification in one lawsuit may not prevent similar class action claims in a later lawsuit.

Federal court to weigh in on the constitutionality of President Obama's recess appointments to the National Labor Relations Board
Faegre Baker Daniels January 20 2012
On January 10, 2012, we reported that court challenges were likely on the constitutionality of President Obama's three recess appointments to the National Labor Relations Board.

When will they learn? Snooping nurse fired, patients notified
Fox Rothschild LLP January 20 2012
A nurse has been fired by a Texas hospital after accessing information on patients for whom she had no clinical responsibility, according to the Mt. Pleasant, TX Daily Tribune.

Is it legal for an employer to secretly track an employee's personal vehicle 24/7 for one month? Perhaps!
Littler Mendelson January 20 2012
A recent decision by a New York appellate court is one of the first cases to address the surreptitious use of location tracking for employment purposes.

The Sixth Circuit settles it: FMLA interference claims should be evaluated under the McDonnell Douglas framework
Porter Wright Morris & Arthur LLP January 20 2012
Even though the FMLA has been around since 1993, the Sixth Circuit did not get around to designating the appropriate framework for reviewing FMLA interference claims until January 17, 2012.

NLRB recess appointments challenged -- could further postpone notice posting
Epstein Becker Green January 20 2012
As Hospitalty Labor and Employment Law Blog readers are aware, on August 30, 2011, the National Labor Relations Board (the “Board”) issued a rule requiring employers to post notices informing employees of their right to join or form a union.

Attention employers - your OSHA Form 300a Annual Summary must be posted by February 1, 2012
Weintraub Genshlea Chediak Law Corporation January 20 2012
The employment lawyers at Weintraub Genshlea Chediak Tobin & Tobin (WGCT&T) want to remind all employers that their OSHA 300a Annual Summary Report must be posted in the workplace by February 1, 2012 and remain posted until April 30, 2012.

What constitutes a disability under the Americans with Disabilities Act (ADA)?
Briggs and Morgan January 20 2012
The Americans with Disabilities Act (ADA) defines “disability” to mean: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; (3) or being regarded as having such an impairment.

Company not liable when it had no reason to believe employee was working overtime
Kelley Drye & Warren LLP January 20 2012
Susan Kellar was promoted to a sewing manager at Summit Seating, a small vehicle-seat manufacturer, in 2004.

Supreme Court addresses "ministerial exception" to discrimination
Ford & Harrison LLP January 20 2012
On January 11, 2012, the Supreme Court issued what is arguably one of its most significant religious liberty decisions in two decades.

Annual report on EEOC developments – fiscal year 2011
Littler Mendelson January 20 2012
Over the past fiscal year, Littler has monitored various developments related to the Equal Employment Opportunity Commission (EEOC).

Third Circuit holds data breach plaintiffs lack standing
Hunton & Williams LLP January 20 2012
On December 12, 2011, the United States Court of Appeals for the Third Circuit affirmed a decision that employees of Ceridian Corporation’s (“Ceridian’s”) customers did not have standing to sue Ceridian after the payroll processing firm suffered a data breach.

Is it discrimination to require a high school diploma?
Weintraub Genshlea Chediak Law Corporation January 20 2012
The Equal Employment Opportunity Commission (“EEOC”) thinks so.

Notice deadline looming under NY Wage Theft Protection Act
Fisher & Phillips LLP January 20 2012
Employers with operations and employees in New York State should by now be aware that the first notice to all employees regarding their pay status, required by the N.Y. Wage Theft Prevention Act (WTPA), must be given by January 31, 2012, and annually from now on.

Public affairs
Ice Miller LLP January 20 2012
The 2012 legislative session will almost certainly be as contentious as we witnessed in 2011.

Tenured professors are not "similarly situated" to non-tenured ones
Kelley Drye & Warren LLP January 20 2012
Illinois State University classifies its professors in two ways.

Holding passwords hostage – international extortion foiled
Dorsey & Whitney LLP January 19 2012
In a case recently filed by a Swiss company in federal court in Florida, the company alleged in its complaint that Jerome Westrick, its former computer programmer and minority shareholder, stole a company laptop, hacked into the company’s computer system, changed access codes and passwords, and locked out the company and its customers from getting into its enterprise content management software.

And so it begins: President Obama's recess appointments face their first attacks
Porter Wright Morris & Arthur LLP January 19 2012
On Friday, January 13, 2012, a number of business groups, including the National Federation of Independent Business, National Right to Work Foundation, Coalition for a Democratic Workplace, lodged the first legal challenge seeking to block President Barack Obama’s January 4, 2012 recess appointments to the National Labor Relations Board.

Are your workers independent contractors or employees?
Baker & McKenzie January 17 2012
Disputes often arise about the true status of contractors when contractors seek access to employment-related benefits, or otherwise where a third party, such as the ATO, considers that a company has incorrectly classified workers and breached obligations (for example, to withhold tax or account for superannuation contributions).

Connecticut Supreme Court requires party seeking new trial because of discovery misconduct to show “reasonable probability” that result at new trial would be different
Day Pitney LLP January 16 2012
In Duart v. Department of Correction, the Connecticut Supreme Court held, in a 5-2 decision, that a party moving for a new trial based on discovery misconduct must demonstrate a “reasonable probability” that the result of a new trial would be different.

Company's "100% healed" policy does not create per se disability discrimination
Ogletree Deakins January 16 2012
In a case that adds to a split among federal appellate courts, the 7th U.S. Circuit Court of Appeals has held that a company’s insistence on an employee being “100% healed” after a medical leave does not necessarily support the employee’s legal claim under the Americans with Disabilities Act (ADA).

New wage notice requirements under New York law
Milbank Tweed Hadley & McCloy LLP January 14 2012
This alert describes important new wage notice requirements applicable to employers in New York.

Long v. Hanging Rock, 2011-Ohio-5137.
Ice Miller LLP January 10 2012
The Chief of Police (“Chief”) of the Village of Hanging Rock had his position terminated because he was unable to run and perform a fitness and agility test due to injury he sustained in the course of his employment.

Should you opt-out of the Ohio workers’ compensation class action suit?
Ice Miller LLP January 10 2012
Many Ohio employers are receiving a “Notice of a Pending Class Action” from the Cuyahoga County Court of Common Pleas.

State ex rel. Lane v. Pickerington, 130 Ohio St.3d 225, 2011-Ohio-5454.
Ice Miller LLP January 10 2012
A former employee of the City of Pickerington had his employment terminated by the City for certain disciplinary reasons.

Legal issues abound with BYOD (bring your own device)
Gardere Wynne Sewell LLP January 8 2012
BYOD has created new challenges for those employers who encourage their employees to buy their own cell phones, tablet devices, and/or computers.

Energy & Natural Resources

NERC proposes modified definition of bulk electric system
Sutherland Asbill & Brennan LLP January 31 2012
The North American Electric Reliability Corporation (NERC) has proposed that all transmission facilities operated at 100 kV or higher and all real and reactive power resources connected to the grid at 100 kV or higher be subject to its Reliability Standards.

EPA promulgates important new mercury and air toxics rule
Hogan Lovells January 30 2012
The United States Environmental Protection Agency (EPA) recently promulgated a significant and far-reaching new air toxics rule that will broadly impact coal- and oil-fired utilities.

Continued criticism
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 29 2012
Electric vehicle battery maker Ener1 Inc. became on January 26 the third recipient of Energy Department support funded by the Recovery Act to file for bankruptcy.

Disapproval of Keystone legislation
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 29 2012
During a House Energy and Commerce subcommittee hearing on Congressman Lee Terry’s (R-NE) legislation (H.R. 3548) January 25, State Department assistant secretary for the Bureau of Oceans and International and Scientific Affairs Kerri-Ann Jones said that the bill, which would require federal approval of the Keystone XL oil pipeline within 30 days of receiving an application, imposes too short of a time frame, preventing an informed decision.

Annual energy outlook
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 29 2012
The Energy Information Administration released its annual energy outlook January 23, predicting that world oil prices will rise to $146/barrel by 2035 because of growing demand in developing countries but natural gas prices will remain low due to the shale gas boom.

Palm oil fuels not renewable
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 29 2012
The Environmental Protection Agency published an analysis January 27 finding that biodiesel and renewable diesel fuels produced from palm oil do not achieve the 20 percent life-cycle greenhouse gas reductions necessary to qualify as renewable fuels.

FirstEnergy to close six coal-fired power plants
Vorys Sater Seymour and Pease LLP January 28 2012
Remember, it's not a bug - it's a feature: "FirstEnergy Corp. announced today that its generation subsidiaries will retire six older coal-fired power plants located in Ohio, Pennsylvania and Maryland by September 1, 2012.

Federal court rules state law regulating nuclear power plant preempted by AEA
Shook Hardy & Bacon LLP January 27 2012
A federal court in Vermont has determined that the Atomic Energy Act (AEA) preempts a state law that authorizes state legislators to shut down the Vermont Yankee nuclear power plant by failing to approve a certificate for continued operation.

Study finds no significant health effects from exposure to wind turbines
Shook Hardy & Bacon LLP January 27 2012
A recent report prepared by an independent panel of appointed experts for the Massachusetts Department of Environmental Protection (MDEP) and Department of Public Health found no significant health impacts from exposure to wind turbines.

Upcoming in 2012: 10 environmental and energy issues to watch in the United States
Reed Smith LLP January 27 2012
As we look forward to 2012, the environmental and energy attorneys at Reed Smith will be on top of a range of issues, and offer the following analysis of what we view, in no particular order, to be 10 key issues likely to affect you and your business in 2012.

Fracking - four key "D.C." issues every company should be watching
Kelley Drye & Warren LLP January 27 2012
The controversy over hydraulic fracturing has ushered in an unprecedented wave of scrutiny over the oil and gas industry from nearly every angle—new lawsuits, more state regulations, constant press (often misleading as captured well in this recent Forbes article), local protests, and city council moratoriums.

FERC eliminates semi-annual gas storage reporting requirements for pipelines
Hogan Lovells January 27 2012
On 19 January 2012, the Federal Energy Regulatory Commission (Commission) issued a final rule eliminating the requirement for providers of interstate pipeline and storage services to submit semi-annual gas storage reports.

Primer provides advice on renewable energy projects on contaminated sites
Shook Hardy & Bacon LLP January 27 2012
The National Association of Local Government Environmental Professionals has released a primer that provides advice and information to help local governments understand the economic issues involved in determining whether a particular renewable energy project is feasible on brownfield and other contaminated sites.

PA PUC issues tentative order to implement new Pipeline Act
Blank Rome LLP January 27 2012
Nothing terrifies the public more than a gas pipeline explosion or leak of hazardous material, so it was no surprise that with the surging development of the Marcellus Shale, Pennsylvania moved quickly to enact legislation to enhance pipeline safety.

Promoting solar energy in Arizona - the Solar Energy Task Force
Lewis and Roca LLP January 27 2012
Last week I attended the January meeting of the Governor's Solar Energy Task Force (Task Force).

Federal court holds that the Migratory Bird Treaty Act does not apply to lawful activities that result in the incidental taking of protected birds
Stoel Rives LLP January 27 2012
In a recent opinion, the United States District Court for the District of North Dakota dismissed misdemeanor criminal charges against three oil and gas companies for violation of the Migratory Bird Treaty Act ("MBTA") arising out of the incidental death of migratory birds through contact with oil reserve pits operated by the defendants.

Coal company agrees to limit selenium discharges at several West Virginia mines
Shook Hardy & Bacon LLP January 27 2012
Patriot Coal Corp. and it subsidiaries have agreed to settle alleged violations of the Clean Water Act by limiting discharges of selenium at several coal mines in West Virginia.

Notice of funding availability - Rural Energy for America Program
Fox Rothschild LLP January 26 2012
The United States Department of Agriculture recently issued a Notice of Funding Availability for the acceptance of applications under the Rural Energy for America Program (REAP) for fiscal year 2012.

California Energy Commission issues 2011 integrated energy policy report
Stoel Rives LLP January 26 2012
Yesterday, the California Energy Commission (CEC) issued a notice that, as part of the CEC’s February 8, 2012 Business Meeting, the Commission will consider adoption of the Lead Commissioner’s Final 2011 Integrated Energy Policy Report (IEPR).

DOE loan guarantees under attack - storm clouds on the horizon for US alternative energy?
Haynes and Boone LLP January 26 2012
On November 28, 2011, CAlifornians for Renewable Energy (“CARE”) filed a lawsuit in the Federal District Court in Washington, D.C., against the U.S. Department of Energy (“DOE”) and the Federal Financing Bank (“FFB”)2 that threatens the viability of more than 6.5GWs of clean energy projects.

Shale of the century
Stephenson Harwood January 25 2012
The US energy expert Daniel Yergin has always had a nose for timing.

Commissioner warns of FERC retreat on transmission rate incentives
Alston & Bird LLP January 25 2012
On the very last business day of 2011, the Federal Energy Regulatory Commission (FERC) used its authority under Section 219 of the Federal Power Act to grant New Jersey’s Public Service Electric & Gas Company (PSE&G) rate incentives for construction of a large transmission project (the “NGR Project”), including a 25 basis-point adder to PSE&G’s return on equity (ROE) for project expenditures.

Oil, gas, and hazardous liquid pipelines face many new safety requirements
Pillsbury Winthrop Shaw Pittman LLP January 25 2012
On January 3, President Obama signed into law the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (a title strongly influenced by current political issues).

FERC fines utilities US$2 million for improper use of network transmission service
Hogan Lovells January 24 2012
On 17 January 2012, the Federal Energy Regulatory Commission (FERC or “Commission”) approved a US$2 million settlement between its Office of Enforcement and Xcel Energy, Inc. (Xcel) for alleged violations of Xcel Operating Company’s and Southwest Power Pool, Inc.’s (SPP) open access transmission tariffs (OATTs).

Pennsylvania seeks comment on revised oil and gas erosion control permit
Reed Smith LLP January 24 2012
On January 20, the Pennsylvania Department of Environmental Protection (DEP) announced it will publish a revised version of its erosion and sediment control general permit for earth disturbance associated with oil and gas activities, along with four other supporting documents, including a draft permit application and a policy explaining the permit requirements.

FERC finds company official committed market manipulation in Mid-Atlantic demand response markets
Hogan Lovells January 24 2012
On 11 January 2012, the Federal Energy Regulatory Commission (FERC) approved a Stipulation and Consent Agreement (Settlement) between FERC’s Office of Enforcement and Joseph Polidoro regarding Mr. Polidoro’s actions relating to the participation of his company, North American Power Partners (NAPP), in PJM Interconnection L.L.C.’s (PJM) Demand Response markets from 2007 to 2008.

Environment
Patton Boggs LLP January 23 2012
On Wednesday, February 1, the House Committee on Science, Space and Technology, Subcommittee on Energy and Environment will hold a hearing concerning U.S. Environmental Protection Agency hydraulic fracturing research.

$3 million for superior energy performance
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The Department of Energy announced January 19 that it would award up to $3 million to administer the agency’s Superior Energy Performance Program to help American manufacturers continually increase the energy efficiency of their domestic facilities, boost their global competitiveness, and create jobs.

LNG report released
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The Senate Energy and Natural Resources Committee held a hearing in November to gain a better understanding on the laws and regulations governing liquefied natural gas exports and how those exports might affect the domestic market.

Energy site launched
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The Department of Agriculture launched a new website last week to provide efficient access to the agency’s energy efficiency and renewable energy data.

$44 million for uranium enrichment
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
Energy Secretary Chu pledged $44 million January 17 to support continued operations at a troubled uranium enrichment plant in Ohio that failed to receive a $2 billion federal loan guarantee.

Legislation introduced
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
Representative Pete Olson (R-TX) introduced legislation (H.R. 3773) January 17 to amend the Renewable Fuel Program in the Clean Air Act to allow domestic alternative fuel to be used to satisfy a portion of the required applicable volume of renewable fuel.

Local RE project primer released
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The National Association of Local Government Environmental Professionals released a primer January 10 to help local governments determine the potential for developing renewable energy on brownfield and other contaminated sites.

Fracking comment period extended
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
On January 20, the Environmental Protection Agency announced the extension of the public comment period, to March 12 from January 27, on a December 8 draft report identifying a probable link between groundwater contamination and hydraulic fracturing in Pavillion, WY.

Heating and AC equipment standards
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The Department of Energy published a rule January 17 amending conservation standards for several classes of commercial heating, air conditioning, and water heating equipment to incorporate recently updated standards developed by the America Society of Heating, Refrigerating, and Air Conditioning Engineers.

Utility MACT won’t harm reliability
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The Congressional Research Service announced January 9 that the Environmental Protection Agency’s mercury and toxics rule for power plants will not harm electricity reliability.

Tidal and wave energy reports
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The Department of Energy released two reports January 18 concluding that tidal and wave energy, along with traditional hydropower, could generate 15 percent of domestic electricity by 2030 if resource potential is fully developed.

DOE features Ames’ lead-free solder patent and license income
Foley & Lardner LLP January 22 2012
The Department of Energy (DOE) recently featured lead-free solder innovation and licensing from the Ames National Laboratory and Iowa State University.

VT nuclear plant remains open
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
On January 19, the U.S. District Court for the District of Vermont issued a permanent injunction sought by Entergy Corp., ruling that a Vermont state permit law was preempted by the federal Atomic Energy Act.

$10 million for university SunShot
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
Energy Secretary Steven Chu announced January 19 two opportunities that will engage innovative scientists from the nation’s top universities to drive transformational research in solar energy as part of the SunShot Initiative.

Upcoming hearings
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The House Energy and Commerce Committee will hold a hearing January 25 to consider President Obama’s decision on the Keystone XL pipeline.

CA battery standards
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The California Energy Commission adopted efficiency standards for battery chargers January 12, which since then have been drawing opposition from the electronics industry.

NJ fracking ban
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
On January 17, New Jersey Gov. Chris Christie signed legislation (S. 2576) imposing a one-year moratorium on fracking operations used during natural gas exploration and production while state regulators continue air and water quality assessments.

EPA to test groundwater in Pennsylvania
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
On January 20, Environmental Protection Agency Administrator Lisa Jackson announced that, under the authority of the Comprehensive Environmental Response, Compensation, and Liability Act, the agency will begin water sampling at 60 homes in and around Dimock, PA, where concerns over fracking-related groundwater contamination concerns have emerged.

USDA announces availability of reap funds
Bricker & Eckler LLP January 22 2012
The U.S. Department of Agriculture announced that funds are once again available through the Rural Energy for America Program (REAP) to provide assistance to agricultural producers and rural small businesses to complete a variety of energy efficiency and renewable energy projects.

Shale impact analysis defended
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
Three Cornell University professors released a report January 19 defending their conclusion that shale gas is worse than coal, oil, or conventional natural gas in terms of GHG emissions.

Wind turbines don’t impact sleep
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
A panel of independent experts convened by the Massachusetts Departments of Environmental Protection and Public Health released a report January 17 finding no evidence that exposure to wind turbines is linked to sleep disruption or other mood disorders.

CA efficiency financing plan
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The California Public Utilities Commission floated a proposal January 17 that would allow residents to borrow from a private lender, retrofit their businesses or homes, and then repay the loan over time through a line on their electric bills.

Wind investigations initiated
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
Following a petition from a coalition of wind tower manufacturers that alleged unfair pricing, the Department of Commerce announced January 19 that it is initiating investigations into utility-scale wind towers in China and Vietnam.

Waste-to-energy plant benefits
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The Solid Waste Association of North America released a white paper January 8 finding that waste-to-energy facilities are reliable and provide economic benefits to communities.

MI battery tax law changes take effect
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
On January 1, Michigan’s SB 855A took effect, requiring taxpayers taking the large battery facility credit create more jobs than in previous years, and by allowing unitary business units to file separate returns for the plug-in traction battery pack credit, integrative cell manufacturing facility credit, and various other Michigan Economic Growth Authority (MEGA) credits.

Nuke FOA
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The Department of Energy began soliciting input from industry January 20 in advance of a full Federal Opportunity Announcement that would help fund first-of-its-kind engineering and design certification and licensing through a cost-shared partnership.

SC request denied
Mintz Levin Cohn Ferris Glovsky and Popeo PC January 22 2012
The Federal Energy Regulatory Commission rejected a request January 19 by South Carolina utility regulators to form a state-federal board that would be tasked with assessing the impacts of new and proposed environmental regulations on electric reliability.

EPA finalizes 2012 renewable fuels standard
Shook Hardy & Bacon LLP January 20 2012
The U.S. Environmental Protection Agency (EPA) has finalized the 2012 percentage standards for four fuel categories that are part of the agency’s Renewable Fuel Standard program (RFS 2).

Fourth Circuit upholds West Virginia surface mining rules
Shook Hardy & Bacon LLP January 20 2012
The Fourth Circuit Court of Appeals has rejected a challenge to West Virginia’s state program implementing the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

Report repudiates claim that renewable energy mandates drive up costs
Bricker & Eckler LLP January 19 2012
Advanced Energy Economy Ohio, a business organization representing the interests of renewable energy companies, determined in a report that "renewable energy premiums in Ohio are likely to approach zero by 2025."

Hydraulic fracturing: environmental and regulatory risks
Winston & Strawn LLP January 19 2012
As the United States strives to realize a national goal of energy independence, shale gas development has appeared to present a great opportunity.

Ohio energy summit videos available online
Bricker & Eckler LLP January 19 2012
The Battelle Memorial Institute, a Columbus-based nonprofit research institution, has made available streaming video from The Ohio Governor's 21st Century Energy & Economy Summit, which took place from September 21-22, 2011, at The Ohio State University.

Developer adds second phase to Champaign County Wind Farm
Bricker & Eckler LLP January 17 2012
EverPower Wind Holdings Inc. plans to add more wind turbines to its Buckeye Wind Project in Champaign County, Ohio, after acquiring more leasing rights from Invenergy Wind North America LLC, according to an article in the Springfield News-Sun.

Summary of FERC meeting agenda
White & Case LLP January 17 2012
Below are brief summaries of the agenda items for the Federal Energy Regulatory Commission’s January 19, 2012, meeting, pursuant to the agenda as issued on January 12, 2012.

PUCO approves settlement between FirstEnergy, OCC resolving dispute over residential wind projects
Bricker & Eckler LLP January 17 2012
The Public Utilities Commission of Ohio (the "Commission") has approved a settlement agreement between the Ohio electric distribution utilities owned by FirstEnergy Corp. and the Ohio Consumers' Counsel ("OCC") resolving allegations by OCC that FirstEnergy's interconnection and net metering procedures were too burdensome and expensive for residential customers utilizing wind turbines to generate electricity.

Environment

USEPA publishes rulemaking notice affecting air pollution controls for the chemical manufacturing sector
Seyfarth Shaw LLP January 31 2012
On January 30, 2012, USEPA published in its Notice of Reconsideration of the October 29, 2009 Final Rule for the Chemical Manufacturing Area Source Rule for 9 area source categories in the chemical manufacturing sector.

Environment
Patton Boggs LLP January 30 2012
On Friday, February 3, the House Committee on Science, Space and Technology, Subcommittee on Energy and Environment will hold a hearing concerning fostering science at the U.S. Environmental Protection Agency (EPA).

RGGI makes some changes, but not the overall cap. Yet.
Foley Hoag LLP January 30 2012
The nine states still participating in the Regional Greenhouse Gas Initiative are getting ready for the first auction of RGGI's second compliance period, scheduled for March 14th.

New ruling highlights split on strict liability for incidental 'taking' of migratory birds
Pillsbury Winthrop Shaw Pittman LLP January 30 2012
Recent federal court decisions regarding the application of the criminal enforcement provisions of the Migratory Bird Treaty Act (MBTA) to the operations of oil and gas exploration and production facilities have resulted in conflicting interpretations of the Act.

Supreme Court unanimously holds California law prohibiting sale, processing or holding of nonambulatory pigs expressly preempted under the Federal Meat Inspection Act
Kelley Drye & Warren LLP January 30 2012
In a unanimous opinion published on January 23, 2012, the Supreme Court reversed the Ninth Circuit Court of Appeals and held that a California law prohibiting the sale, processing or holding of a nonambulatory animal was expressly preempted by the Federal Meat Inspection Act.

New FCC rules regarding broadcast and communications