Asia-Pacific

Construction

EPC contracts in the power sector
DLA Piper February 7 2012
Engineering, procurement and construction (EPC) contracts are the most common form of contract used to undertake construction works by the private sector on large-scale and complex infrastructure projects.

Energy & Natural Resources

Projects & Procurement

Trade & Customs

The NAFTA of the Pacific
Diaz Reus January 23 2012
At the November 12, 2011 Asia-Pacific Economic Cooperation (APEC) summit in Hawaii, both Canada and Mexico – signatories to the North American Free Trade Agreement (NAFTA) – announced their intention to join fellow NAFTA member, the United States, along with other non-member countries, in establishing the so-called “NAFTA of the Pacific”.

Australia

Banking

Guidance on advertising of financial products and advice services
Blake Dawson February 20 2012
ASIC has released Regulatory Guide 234 Advertising financial products and advice services: Good practice guidance to help promoters comply with obligations when advertising financial products and services.

Last chance for banks to have a say on scope of price signalling law
Freehills February 19 2012
Treasury’s consultation on the draft price signalling regulations continues until 22 March 2012.

ASIC sets out 2012 agenda for financial services industry
Clayton Utz February 16 2012
ASIC's 2012 priorities for the financial services sector are advertising, Strong Super, and shorter PDS disclosure.

APRA revokes use of the term "merchant bank" for non-regulated short-term money market businesses
Blake Dawson February 16 2012
On 9 February, APRA announced that it has revoked an existing consent for non-regulated financial businesses operating in the short-term money market to describe themselves as "merchant banks".

ASIC releases regulatory guidance on the advertising of financial products and advice services
Blake Dawson February 16 2012
On 14 February, ASIC released Regulatory Guide 234 Advertising financial products and advice services: Good practice guidance (RG 234) to help promoters comply with their financial services legal obligations when advertising financial products and services.

Business finance & insolvency law - developments in 2011
Rajah & Tann LLP February 9 2012
2011 saw many important legal developments in the area of business finance and insolvency law both internationally as well as in Singapore.

Capital Markets

ASIC announces new measures for issuers of secured debt products
Blake Dawson February 20 2012
ASIC has announced measures to help ensure issuers of debt product (such as debentures and notes) provide investors with the information they require to make informed investment decisions.

ASIC issues market supervision report for July to December 2011
Blake Dawson February 16 2012
On 7 February, ASIC issued Report 277 ASIC supervision of Australian financial markets and market participants: July to December 2011.

ASIC signs regulatory cooperation arrangement with Canadian regulators
Blake Dawson February 16 2012
On 10 February, ASIC announced a comprehensive arrangement with Canadian regulatory entities (ie Quebec Autorité des marchés financiers, the Ontario Securities Commission, the Alberta Securities Commission and the British Columbia Securities Commission) to facilitate their supervision of regulated entities that operate in both Australia and Canada.

Financial services advertising under the microscope, says ASIC
Clayton Utz February 16 2012
ASIC has promised greater scrutiny of the financial services sector's advertising, including online and mobile advertising, with the release of its new regulatory guide, RG 234 Advertising financial products and advice services: Good practice guidance, on Tuesday.

ASIC announces new measures for issuers of secured debt products
Blake Dawson February 16 2012
On 8 February, ASIC announced measures to help ensure debt product issuers provide investors with the information they require to make informed investment decisions.

AUSTRAC releases new Guidance Note on registration obligations for remittance service providers
Blake Dawson February 16 2012
On 7 February, AUSTRAC released Guidance Note 12/01 Registration obligations for remittance service providers from 1 November 2011 to assist remittance services providers in understanding the changes to their registration obligations from 1 November 2011 as a result of amendments to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

ASIC releases updated policy on member approved acquisitions
Freehills February 14 2012
ASIC has released its updated Regulatory Guide 74 which concerns the takeovers exception for acquisitions approved by members.

ASIC releases disclosure guidance for agribusiness schemes
Freehills February 14 2012
Following the failure in recent years of a number of agribusiness scheme operators, ASIC has released an investor guide and Regulatory Guide 232: Agribusiness Schemes - Improving disclosure for retail investors.

Commercial Property

Liquidators of landlords cannot disclaim tenants' leasehold interests
Minter Ellison February 21 2012
Can the liquidator of a landlord disclaim a lease so that the tenant no longer has any interest in the land?.

Lifting the governance bar in aged care: new requirements for accommodation bonds
Blake Dawson February 16 2012
From 1 February 2012 approved providers must have documented and implemented a governance system meeting the minimum requirements now set out in the User Rights Principles 1997 (Cth) (User Rights Principles).

Property investment and SMSFs - part 1: direct investment
Hall & Wilcox February 15 2012
If a fund trustee is contemplating acquiring land to develop, there are a number of commercial and prudential requirements the fund trustee must consider from both a superannuation and tax law perspective.

PPSA – does it affect real property?
Thomsons Lawyers February 10 2012
On 30 January 2012 the Personal Property Securities Act 2009 (Cth) (PPSA) commenced operation.

Strategic cropping land: ploughing ahead for agribusiness or putting up walls for urban developers and digging holes for resource companies?
Cooper Grace Ward February 3 2012
The Strategic Cropping Land Act (Act) has been passed to protect ‘strategic cropping land’ in Queensland from development that would permanently alienate the land, or reduce its agricultural capacity.

Company & Commercial

Court orders deferral of AGM to resolve share dispute
Blake Dawson February 20 2012
In Altius Mining Limited v Sakura Capital Limited [2012] FCA 13 there was a dispute about various shareholding matters.

Proportionate liability
Blake Dawson February 20 2012
The proportionate liability legislation (in all States and Territories and under Commonwealth legislation) was introduced as one response to the "insurance crisis" in 2002 after the collapse of HIH.

It's a privilege – company secretary's notes of legal advice to board protected
Blake Dawson February 17 2012
In Kirby v Centro Properties Limited (No 2) [2012] FCA 70 (10 February 2012), the Federal Court upheld claims for privilege with respect to a company secretary's notes of board and audit and risk management committee meetings.

Foreign investment into agribusiness: an opportunity for Australia
McCullough Robertson February 10 2012
Foreign investment into Australia’s farmland and agricultural businesses has gained a great deal of media attention in recent times.

Competition

Call for further comment on NBN Co Special Access Undertaking
Blake Dawson February 20 2012
As a part of the mandatory public consultation process, the ACCC has released a supplementary consultation paper inviting further stakeholder submissions regarding the decision about whether to approve the Special Access Undertaking (SAU) lodged by NBN Co Limited on 5 December 2011.

Construction

The Construction Contracts Act 2004 (WA) may not apply to your contract after all
Clayton Utz February 16 2012
A recent decision provides some clarity in relation to the "mining exclusion" under the Construction Contracts Act 2004 (WA).

Corporate Finance/M&A

Corporate Tax

Legislation alert: reform in the Australian shipping industry
Blake Dawson February 20 2012
In September 2011, the Australian Department of Infrastructure and Transport announced a "Stronger Shipping for a Stronger Economy" shipping reform package, to commence on 1 July 2012.

ATO targeting independent contractor arrangements
Hall & Wilcox February 16 2012
The Commissioner of Taxation (Commissioner) is targeting employers and principals who fail to adequately discharge their PAYG and superannuation guarantee obligations.

Treasury releases exposure draft to permit the disclosure of superannuation information by the ATO
Blake Dawson February 16 2012
On 14 February, Treasury released an exposure draft and explanatory memorandum for the Superannuation Legislation Amendment (Stronger Super and Other Measures) Bill 2012: Disclosure of superannuation information.

Refunds delayed, refunds denied - the Commissioner's new powers to retain refunds of GST
Clayton Utz February 16 2012
The Commissioner of Taxation's general power to withhold refunds to allow "verification of information" could cause additional funding costs for taxpayers and affect the financial viability of those taxpayers or their projects.

Being an individual trustee of a self-managed superannuation fund could be more than you bargained for
Cooper Grace Ward February 13 2012
Individual versus corporate trustee – one of the common questions for SMSF trustees.

ATO ID 2012/6 – GST and representative of an incapacitated entity acting as both supplier and recipient of the representative's administration services
Blake Dawson February 9 2012
On 27 January 2012, the ATO released ATO Interpretative Decision 2012/6 (ATO ID 2012/6), which states that, if the same legal person is acting in two different capacities, Entity A as an administrator for an incapacitated entity and Entity B as an insolvency practitioner for the same incapacitated entity, Entity A is entitled to input tax credits (ITCs) under section 58-10 of the GST Act for its payment of administration fees to Entity B.

Draft GSTR 2011/D5 – GST treatment of care services and accommodation in retirement villages and privately funded nursing homes and hostels
Blake Dawson February 9 2012
The ATO has released draft GST Ruling 2011/D5 (GSTR 2011/D5), which states that a supply of services to a resident living in a retirement village, a privately funded nursing home, or hostel is a GST-free supply of residential care under section 38-25(3) of the GST Act if: the services are provided to one or more aged or disabled persons in a residential setting; and the Aged Care Minister has determined in writing that the services are of a kind covered by Schedule 1 to the Quality of Care Principles; and the services include, and are only provided to people who require, the services set out in item 2.1 of Schedule 1 to the Quality of Care Principles or item 3.8 of Part 3 of Schedule 1 to the Quality of Care Principles.

Derivatives

The carbon pricing mechanism: understanding the regime and its implications for the finance sector
Minter Ellison February 13 2012
In under six months, Australia will have a carbon pricing mechanism (CPM), designed to underpin Australia's efforts to reduce its greenhouse gas (GHG) emissions over the coming decades.

Employee Benefits & Pensions

Limited recourse borrowings by superannuation fund to be "financial products"
Blake Dawson February 20 2012
The Government has released draft Corporations Amendment Regulations 2012 and an explanatory memorandum to designate certain borrowing arrangements by superannuation fund trustees as "financial products" under the Corporations Act.

Regulations reduce minimum annual payment amounts to annuities and pensions
Blake Dawson February 20 2012
On 14 February, the Superannuation Industry (Supervision) Amendment Regulation 2012 (No. 1) and the Retirement Savings Accounts Amendment Regulation 2012 (No. 1) commenced.

Limited recourse borrowings by superannuation fund designated as "financial products" under draft corporations regulations
Blake Dawson February 16 2012
On 13 February, the Government released draft Corporations Amendment Regulations and explanatory memorandum to designate certain borrowing arrangements by superannuation fund trustees as "financial products" under the Corporations Act.

Treasury releases exposure draft on payslip reporting of superannuation contributions
Blake Dawson February 16 2012
On 14 February, Treasury released for public consultation an exposure draft and explanatory memorandum for the Superannuation Legislation Amendment (Stronger Super and Other Measures Bill) (No. 2) Bill 2012: giving information about superannuation contributions.

Regulations registered to reduce minimum annual payment amounts to annuities and pensions
Blake Dawson February 16 2012
On 13 February, Superannuation Industry (Supervision) Amendment Regulation 2012 (No. 1) and Retirement Savings Accounts Amendment Regulation 2012 (No. 1) were registered, and they commenced on 14 February.

Treasury releases exposure draft on superannuation data and payment standards
Blake Dawson February 16 2012
On 9 February, the Government released for public consultation an exposure draft and explanatory memorandum for the Superannuation Legislation Amendment (Stronger Super and Other Measures) Bill (No. 2) Bill 2012: Superannuation data and payment standards, as part of its SuperStream reforms.

Employment & Labor

NSW Codes of Practice – is your workplace using the right ones?
McCullough Robertson February 21 2012
To coincide with the commencement of the Work Health and Safety Act 2011 (NSW) (WHS Act) on 1 January 2012, the WorkCover Authority of New South Wales released 11 new Codes of Practice.

High Court refuses special leave in Pilbara Iron case
Blake Dawson February 16 2012
The High Court rejected on 10 February 2012 an application for special leave to appeal from a decision of the Full Court of the Federal Court in which it had ruled invalid the employee collective agreement covering Pilbara Iron Company (Services) employees.

High Court refuses special leave in Pilbara Iron case
Husch Blackwell LLP February 16 2012
The High Court rejected on 10 February 2012 an application for special leave to appeal from a decision of the Full Court of the Federal Court in which it had ruled invalid the employee collective agreement covering Pilbara Iron Company (Services) employees.

Industrial unrest: coming to a mine-site near you!
Freehills February 16 2012
Since the Federal Government's Fair Work Act came into effect in 2009, the mining industry has seen a steady increase in industrial activity.

Batten down the hatches: the impact of extreme weather events on workplace safety
Squire Sanders February 15 2012
Western Australia is a big place.

Roses are red, violets are blue: dealing with unwelcome Valentines in the workplace
DLA Piper February 14 2012
In any business, best results can be achieved when employees work closely together.

Don’t get caught in the past – WHS regulations and codes released
Kemp Strang February 14 2012
As our readers would already be aware, OHS / WHS harmonisation was a big topic in the lead up to Christmas 2011.

FWA majority approves “loaded rate” as a substitute for paid annual leave
Kemp Strang February 14 2012
A Fair Work Australia Full Bench decision has, by a 2-1 majority, approved an enterprise agreement which allows a New South Wales paint contractor to pay a higher hourly rate to workers throughout the year in return for unpaid annual leave.

Energy & Natural Resources

Draft Energy White Paper released
Blake Dawson February 20 2012
On 13 December 2011, the Minister for Resources, Energy and Tourism, Martin Ferguson, released the draft Energy White Paper for public consultation.

Competitive bidding tender process for Queensland coal tenures
Thomsons Lawyers February 3 2012
On 13 January 2012, the Queensland Government announced significant reform to the way in which land will be made available for coal tenure.

Environment

Ports and climate change: acting ahead of regulation
Clayton Utz February 16 2012
As international port experience reveals, there are opportunities in acting ahead of regulation and virtues in anticipating climate change regulation.

Australian Senate approves Carbon Pricing Scheme
Jones Day February 15 2012
The Carbon Pricing Scheme, to be implemented in Australia via the Clean Energy Bill 2011 (Cth) and 12 additional pieces of supporting legislation, was passed into law by the Australian Senate on November 8, 2011 and received Royal Assent.

Proposed linking of NZ's ETS with Australia's Carbon Pricing Scheme
Minter Ellison February 13 2012
In early December 2011, the New Zealnd Minister Responsible for Climate Change Negotiations, Tim Groser, and his Australian counterpart, Greg Comet announced ambitions to link NZ's ETS with Australia's Carbon Pricing Scheme by 2015.

Franchising

When all is not perfect in a pets paradise franchise: misleading and deceptive conduct
Freehills February 16 2012
Pampered Paws Connection Pty Ltd v Pets Paradise Franchising (Qld) Pty Ltd (No 10) [2012] FCA 25 acts as a helpful reminder to franchisees and franchisors alike.

Healthcare

It lives! ANZTPA rises from the dead
Clayton Utz February 21 2012
The joint Australian and New Zealand therapeutic goods agency is back on the agenda.

Health alert - 20 February 2012
DLA Piper February 20 2012
This is a transcript from an application by Jayant Patel in the High Court of Australia seeking special leave to appeal a decision of the Queensland Court of Appeal.

New national body to support Medicare Locals
Minter Ellison February 16 2012
On 1 July 2012 the Autralian General Practice Network, a national primary care organisation, will form a new national body for Medicare Locals.

Patel v The Queen
Minter Ellison February 16 2012
The High Court granted Dr Patel special leave to apeal, with his primary contention being that he was tried under the incorrect provision of the Criminal Code (Qld), section 288.

Health Care Complaints Commission v Dr Hameiri
Minter Ellison February 16 2012
Dr Hameiri conducted practice at Double Bay, which, as well as being a general medical practice, provuded vitamin therapes involving the administration of vitamin supplements to patients intrvenously and intramuscularly.

Inquest into the death of David Crisfield
Minter Ellison February 16 2012
David Crisfield was 43 years old, with a medical history of Crohn's disease treated with immunosuppressive therapy, oesophagitis, non insulin dependent diabetes mellitus and chronic obstructive pulmonary disease.

Online tobacco ads stubbed out
Minter Ellison February 16 2012
Tanya Plibersek said the Senate has passed legislation restricting online tobacco advertising in Australia.

Grants announced to fight youth binge drinking
Minter Ellison February 16 2012
The Federal Government is continuing its fight against youth binge drinking armed with a A$10 million to fund 26 community level projects across Australia.

Khan v Medical Board of Australia [2011] QCAT 639
McInnes Wilson Lawyers Pty Ltd February 15 2012
On 27 August 2010 the Medical Board of Australia resolved to refuse the renewal of limited (special purpose) registration to Dr Khan.

Attudawage v Medical Board of Australia (No 3) [2011] QCAT 606
McInnes Wilson Lawyers Pty Ltd February 15 2012
On 1 July 2010 the Australian Health Practitioner Regulation Agency (AHPRA) was established.

Health alert - 13 February 2012
DLA Piper February 13 2012
Psychology - registered psychologist supervising provisionally registered psychologist – finding of professional misconduct - conduct substantially relates to circumstances arising from information provided by a client to provisionally registered psychologist under the supervision of the Respondent – information regarding abuse of child – failure to/significant delay in report to Department of Community Services.

Information Technology

Australian cloud computing guidelines
Buddle Findlay February 20 2012
The Australian Government Information Office has released a guideline on cloud computing.

Sending data overseas - don't worry, be happy?
Minter Ellison February 17 2012
Any decision to host its email services offshore triggers privacy law compliance issues for Telstra.

Insolvency & Restructuring

Insurance & Reinsurance

Internet

Australian cloud computing guidelines
Buddle Findlay February 20 2012
The Australian Government Information Office has released a guideline on cloud computing.

Sending data overseas - don't worry, be happy?
Minter Ellison February 17 2012
Any decision to host its email services offshore triggers privacy law compliance issues for Telstra.

Online tobacco ads stubbed out
Minter Ellison February 16 2012
Tanya Plibersek said the Senate has passed legislation restricting online tobacco advertising in Australia.

Litigation

Enforcing UK judgments in Australia
Clayton Utz February 16 2012
There are two ways successful UK litigants can have their judgments recognised in Australia.

Omitting work from contract - variation or termination?
Clayton Utz February 16 2012
A principal's right to reduce or omit work will not amount to termination unless the work has been reduced to nil and was in "substance" a termination.

High Court of Australia accepts ‘cumulative effect’ theory of causation
Borden Ladner Gervais LLP February 9 2012
Australia’s highest court has, in Amaca Pty Ltd v Booth, [2011] HCA 53, accepted that parties may be liable where they are likely to have been one of a number of the cumulative causes of injury.

Media & Entertainment

Online tobacco ads stubbed out
Minter Ellison February 16 2012
Tanya Plibersek said the Senate has passed legislation restricting online tobacco advertising in Australia.

Non-profit Organizations

Move towards national regulation of fundraising
Minter Ellison February 17 2012
The Australian Government has released a consultation paper seeking public views on the proposal to introduce uniform national fundraising regulation.

Patents

US law reform: inventor signature requirements
Freehills February 15 2012
We look at the changes which bring greater ease and flexibility into the requirement for inventor signature(s).

Private Client & Offshore Services

Wife’s failure to disclose she had AIDS does not render marriage a nullity
Borden Ladner Gervais LLP February 9 2012
Divorces are usually messy, this one (Rick v King, [2011] FamCAFC 200) more than most.

Product Liability

It lives! ANZTPA rises from the dead
Clayton Utz February 21 2012
The joint Australian and New Zealand therapeutic goods agency is back on the agenda.

Professional Negligence

Projects & Procurement

Guidance for drafting contracts: checking cross-references
DLA Piper February 21 2012
Commercial contracts often contain a number of different parts such as a formal instrument of agreement, schedules returned by the contractor, general terms and conditions, technical specifications, key performance indicators, drawings, policies and annexures, etc.

Public

How do council staff conduct their meetings?
Hunt & Hunt February 17 2012
The officer in charge of a municipality is obliged by the Public Records Act 1973 to make and keep full and accurate records of its meetings, including informal meetings conducted as part of the planning process.

Shipping & Transport

Will you be caught by the widening of responsibility for “safety and fairness” and remuneration in the road transport industry???
Hunt & Hunt February 17 2012
In November 2011 the Road Safety Remuneration Bill (“RSRB”) was introduced into Federal Parliament, aimed at “promoting safety and fairness in the road transport industry”.

Proposed port licence fee likely to cause higher tariffs
Hunt & Hunt February 3 2012
The Victorian Government has introduced a Bill, which would require the Port of Melbourne Corporation (“PoMC”) to pay the Government an annual Port Licence Fee (“PLF”) of $75 million.

Telecommunications

Australian regulator continues to pursue spam SMS actions
Baker & McKenzie February 16 2012
The Australian Communications and Media Authority (ACMA) has announced that it accepted an enforceable undertaking from nightclub promoter, Urban Agent, to comply with provisions of the Australian Spam Act 2003.

White Collar Crime

ACCC to match rhetoric with action
Freehills February 15 2012
Freehills Partner Grant Marjoribanks discusses the recent tightening of Australian laws to combat white collar crime.

Austria

Capital Markets

Financial Market Authority tightens insider rules in new compliance regulation
Schoenherr February 15 2012
On 31 January 2012, the Financial Market Authority (FMA) amended the compliance regulation (Amendment to the Emittenten-Compliance-Verordnung 2007, ECV 2007) introducing the concept of „compliance-relevant information“.

Belgium

Capital Markets

Some European short selling restrictions lifted
Katten Muchin Rosenman LLP February 17 2012
As reported in the August 19, 2011 edition of Corporate and Financial Weekly Digest, France, Belgium, Spain and Italy imposed short selling bans in relation to certain banking and financial institutions in August 2011.

France, Belgium and Spain lift short selling restrictions on financial companies
Schulte Roth & Zabel LLP February 16 2012
The ban on short selling financial companies traded on Spanish markets will be lifted with effect from 16 February 2012.

Employment & Labor

2011 employment law review
Dechert LLP February 9 2012
With effect from 12 April 2011, new legislation modified the length of the notice periods for workers whose employment began after 31 December 2011.

Brazil

Company & Commercial

Complying with Brazil's Consumer Protection Code
Diaz Reus January 23 2012
Brazil, as the seventh largest economy in the world, and the fifth largest nation in terms of land mass, continues to present great market opportunities to foreign investors.

Employment & Labor

Court rules telecommunications companies can outsource call centre services
Baker & McKenzie February 16 2012
The Brazilian Superior Labour Court has issued a decision that refused to acknowledge a direct employment relationship between an employee of a call centre company and the telecommunication services operator that engaged the call centre company.

Litigation

Product Liability

Telecommunications

British Virgin Islands

Company & Commercial

New guidelines for use of restricted company names
Harney Westwood & Riegels February 16 2012
New regulations have come into force which govern the use of restricted company names in the British Virgin Islands.

Private Client & Offshore Services

Canada

Arbitration

Simplifying the arbitration process for renewal or extension rent: achieving a simple, effective and cost-efficient process for determining rent
Fraser Milner Casgrain LLP February 16 2012
In order for an option to renew or extend to be enforceable (as opposed to being a mere “agreement to agree”, which is unenforceable at law), there are two required elements: (1) a formula or reference standard to fix the new rent; and (2) procedural machinery to determine the new rent in the event that the parties don’t agree (i.e. an ADR process).

Barring persons under 18 from “risk-sensitive positions” not only a right, but an obligation for employers
Norton Rose February 16 2012
On November 12, 2011, arbitrator Jean-Louis Dubé affirmed that employers have not only the right, but the obligation to bar individuals under 18 years of age from jobs that are likely to be detrimental to their health and physical or moral development.

The rules of the game: international and trade litigation and arbitration involving chinese and canadian parties
Blake Cassels & Graydon LLP February 16 2012
Canada’s economic relationships with the People’s Republic of China continue to grow each year, creating attractive partnership opportunities for Canadian and Chinese companies.

Alberta Court of Appeal declines to upset foreign arbitral award
Borden Ladner Gervais LLP February 15 2012
A November 2011 decision of the Alberta Court of Appeal is the latest chapter in a longstanding case involving efforts by Pertamina, the Indonesian national oil & gas company, to prevent the enforcement of a Swiss arbitral award in favour of KBC, a Cayman Islands company.

Be prepared - duty to accommodate takes new turn
Fasken Martineau DuMoulin LLP February 15 2012
Employers are regularly called upon to modify the workplace or job duties in order to accommodate disabilities.

ONCA to consider whether non-party to arbitration agreement can move to stay
McCarthy Tétrault LLP February 13 2012
In Shaw Satellite G.P. (c.o.b. Shaw Direct) v. Pieckenhagen, Perell J. concluded that a defendant who denies that it is a party to an arbitration agreement has no ability to move to stay an action in favour of arbitration pursuant to s. 7 of the Arbitration Act, 1991.

Canada’s highest court grants significant deference to labour arbitrators
Miller Thomson LLP February 13 2012
A recent Supreme Court of Canada case, Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, confirms that a high degree of deference is to be granted to arbitral decisions under judicial review.

Aviation

Federal government signals all-in pricing requirement for airlines forthcoming
Gowling Lafleur Henderson LLP February 16 2012
On December 15, 2011, amendments to the Canada Transportation Act that permit the government to issue regulations with respect to the advertising of airfares came into force.

Pilot sentenced to 9 months in jail for dangerous operation of an aircraft
Alexander Holburn Beaudin & Lang February 14 2012
A young pilot from Saskatchewan has been sentenced to 9 months in jail and has had his licence suspended for two years in connection with an incident that occurred at the Fort Good Hope Airport, NWT, on May 10, 2010.

Banking

Jones v. Tsige: how a bizarre love triangle inspired an evolution in privacy law
Miller Thomson LLP February 17 2012
Jones v. Tsige, a recent case from the Ontario Court of Appeal, represents the first appellate level decision in Ontario to recognize the tort of “intrusion upon seclusion”, a remedy for invasion of privacy.

When less is not more - PPSA pitfalls for the unwary
Cassels Brock & Blackwell LLP February 16 2012
A recent Alberta decision highlights potential pitfalls for lenders registering against equipment outside of Ontario; Alberta legislation requires a lender to describe “serial numbered” equipment against which a purchase money security interest (PMSI) will be asserted by year, make, model and VIN/serial number in a schedule to the registration, or by “type and kind” in the general collateral description box.

The effect of an assignment of security on unsecured claims
Davis LLP February 14 2012
The numerous motions in the Saskatchewan Court of Queen’s Bench in Eagle Eye Networks Inc. and CPC Networks Corp. (“CPCN”) paint a remarkable history of a falling out among the major shareholders of CPCN, who were its first directors and officers, and the many and varied steps taken by two such shareholders to recover monies allegedly loaned by one of them to CPCN.

OBA submission on cash collateral finalized
Stikeman Elliott February 14 2012
As I discussed in my post of January 4, the Ontario Personal Property Security Law Sub-Committee of the Ontario Bar Association’s Business Law Section has been working on a draft proposal over the last year to amend Ontario's personal property security legislation to deal more effectively with cash collateral.

Secured creditors beware: Crown GST/HST garnishment may trump your security interest in an account receivable
Borden Ladner Gervais LLP February 14 2012
In the recent decision of the Supreme Court of Canada in Toronto-Dominion Bank and Her Majesty the Queen (2012 SCC 1), the Supreme Court succinctly agreed with the reasons of Justice Noël of the Federal Court of Appeal.

Capital Markets

International investment fund managers may need to register in Canada - revised registration requirements and exemptions for non-resident investment fund managers published for comment
McMillan LLP February 17 2012
On February 10, 2012, the Ontario Securities Commission, the Québec Autorité des marchés financiers, the New Brunswick Securities Commission, and the Newfoundland and Labrador Financial Services Regulation Division (collectively, the "Participating Jurisdictions") published a request for comments in relation to proposed Multilateral Instrument 32-102 Registration Exemptions for Non-Resident Investment Fund Managers (the "Proposed Instrument") and its Companion Policy 32-102CP (the "Companion Policy").

Canadian securities regulators propose registration rules for non-resident investment fund managers
Osler, Hoskin & Harcourt LLP February 17 2012
On February 10, 2012, the Ontario Securities Commission, together with securities regulators in New Brunswick, Québec and Newfoundland (the Exemption-Based Jurisdictions) published for comment proposed Multilateral Instrument 32-102 Registration Exemptions for Non-Resident Investment Fund Managers (Proposed MI 32-102) relating to proposed registration exemptions for non-resident investment fund managers.

CSA to complete Phase 1 of Modernization Project and amend investment fund rules
Blake Cassels & Graydon LLP February 17 2012
On February 9, 2012, the Canadian Securities Administrators (CSA) released the final form of amendments (the Amendments) to National Instrument 81-102 Mutual Funds (NI 81-102) and related instruments.

Ontario capital markets participation fees for unregistered IFMs due within 90 days of their year end
Stikeman Elliott February 17 2012
A reminder to unregistered investment fund managers (UIFMs) that the annual capital markets participation fee (CM participation fee) applicable only in Ontario is due within 90 days of a UIFM’s year end.

Court of Appeal makes it clear that plaintiffs must obtain leave for secondary market class action within 3-year limitation period
Stikeman Elliott February 16 2012
In Sharma v. Timminco Limited, a decision released on February 16, 2012, the Court of Appeal for Ontario determined that section 28 of the Class Proceedings Act, 1992 (CPA) which allows for the suspension of a limitation period applicable to a cause of action asserted in a class proceeding, is not triggered until after leave is granted under Part XXIII.1 of the Securities Act to commence a statutory cause of action for misrepresentation.

Proposed amendments to prospectus marketing rules: new "testing of the waters" exemption for IPOs
Stikeman Elliott February 16 2012
As we discussed in a post last year, the Canadian Securities Administrators (CSA) proposed amendments on November 25, 2011 intended to expand the scope of marketing activities that can be conducted in connection with prospectus offerings.

B.C. Supreme Court takes first look at new secondary market liability provisions
McMillan LLP February 16 2012
How will the courts interpret the test for leave in relation to the new secondary market liability provisions of the B.C. Securities Act?

Bribery laws: protecting your good name. Part I - corporate legal counsel
Fasken Martineau DuMoulin LLP February 16 2012
As the corporate risk landscape changes, North American companies need to conduct a risk assessment and implement a top-down culture and compliance program against bribery and corruption.

BCCA may consider the test for leave to commence an action pursuant to the new secondary market liability provisions
McCarthy Tétrault LLP February 15 2012
The British Columbia Court of Appeal may soon consider the test for a purchaser or vendor in the “secondary market” to obtain leave to commence an action for misrepresentation under Part 16.1 the BC Securities Act.

Continuous disclosure guidance from the Alberta and Ontario Securities Commissions
Davis LLP February 8 2012
Reporting issuers are subject to numerous continuous disclosure obligations under securities law in Canada.

Commercial Property

HST transitional rules – British Columbia
Fraser Milner Casgrain LLP February 17 2012
Immediate action is required for new housing sales effective February 18th, 2012.

Aboriginal law 2011 a year in review
Gowling Lafleur Henderson LLP February 17 2012
The Federal Court found that the 2011 Census and National Household Survey did not infringe the equality rights (s. 15 of the Canadian Charter) of offreserve Aboriginal people because no distinction was made based on aboriginality or nonresidence on reserve.

New property tax appeal procedures in Alberta
Miller Thomson LLP February 16 2012
In the first few months of the year, property owners in Alberta will be receiving their property tax and business tax assessments, and should be considering making a complaint if their assessment is significantly in error

Company & Commercial

Quebec Court of Appeal confirms right of lessor to claim its vehicles seized by creditor
Blake Cassels & Graydon LLP February 16 2012
On January 11, 2012, in 9089-3777 Québec Inc. c. Fischer (Fischer), the Québec Court of Appeal (the Court) confirmed the right of a lessor to claim its vehicles seized by its lessee’s unsecured creditor even though the underlying lease had not been published in accordance with Article 1852 of the Civil Code of Québec (the CCQ).

Institutional Shareholder Services proxy voting policies
Farris Vaughan Wills & Murphy LLP February 13 2012
Each year, Institutional Shareholder Services, the leading proxy advisory firm in Canada, updates its proxy voting policies.

Latest step in CRA’s new audit approach: “risk assessment” interviews with large businesses
Borden Ladner Gervais LLP February 13 2012
In the next few weeks, the Canada Revenue Agency (“CRA”) plans to conduct individual risk-assessment interviews with a select group of 50 large businesses.

Notice and access
Farris Vaughan Wills & Murphy LLP February 13 2012
A “Notice and Access” system is a mechanism that permits delivery of materials to shareholders for annual and special meetings via “notice” rather than delivery of a full paper copy of an information circular.

Competition

Quebec construction companies plead guilty to bid-rigging in Chicoutimi Hospital expansion project
Stikeman Elliott February 18 2012
On February 17, the Competition Bureau announced that three construction companies—Construction G.T.R.L. (1990) Inc., Acoustique JCG Inc., and Entreprises de Construction OPC Inc.—have pled guilty to charges of bid-rigging in a construction project involving the expansion of the Chicoutimi hospital.

Alberta court releases seminal competition law costs decision
Blake Cassels & Graydon LLP February 17 2012
In 321665 Alberta Ltd. v. ExxonMobil Canada Ltd., the Court of Queen’s Bench of Alberta released the first reported decision on a party’s entitlement to costs pursuant to s. 36 of the Competition Act, R.S.C. 1985, c-34.

Competition Bureau moves forward with implementation of merger registry
McCarthy Tétrault LLP February 17 2012
The Competition Bureau (Bureau) announced its intention to publish monthly reports of concluded merger reviews.

Competition Bureau to publish list of completed merger reviews
Norton Rose February 16 2012
The Competition Bureau will soon begin publishing a Merger Register on its website that will disclose certain information about transactions that are subject to the pre-merger notification obligations contained in the Competition Act.

Competition Bureau increases the “transaction-size threshold” for pre-merger notification
McCarthy Tétrault LLP February 14 2012
Last week we discussed the new merger review guidelines released by the Competition Bureau of Canada.

Canada and the U.S.: differences in competition law
Gowling Lafleur Henderson LLP February 13 2012
Competition Act is a federal statute administered by the Competition Bureau; there is no other related federal or provincial legislation.

Construction

An insurance clause does not necessarily bar a claim by the owner
McCarthy Tétrault LLP February 21 2012
When does an insurance clause in a construction contract bar a claim by the owner against the contractor?

Copyrights

A practical guide to software license agreements: term and termination
Borden Ladner Gervais LLP February 17 2012
Software licenses and associated services are usually time-limited and subject to early termination.

Potted Potter and the possibility of parody
Heenan Blaikie LLP February 15 2012
The news that the stage play Potted Potter has come to Toronto should be something which causes the ears of copyright lawyers (and others interested in copyright law) to perk up.

Canada's own controversy over copyright legislation
Stikeman Elliott February 14 2012
Last month, the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) became household names in the United States, as internet and technology giants like Wikipedia and Google engaged in a widely publicised day of protest and persuaded many Americans to petition their congressional representatives.

Corporate Finance/M&A

Goodwill hunting: identifying and allocating value to goodwill on the sale of a business
Borden Ladner Gervais LLP February 16 2012
One of the more significant issues in an asset purchase deal is the allocation of purchase price among the assets being purchased.

Law firm not liable for carefully worded third-party opinion
Borden Ladner Gervais LLP February 9 2012
Remember Marc Dreier?

Interpreting ‘subject to consent, such consent not to be unreasonably withheld’
Borden Ladner Gervais LLP February 9 2012
The English Commercial Court has fleshed out the principles to be applied in interpreting this oft-used phrase in a commercial contract: Porton Capital Technology Funds v 3M UK Holdings Ltd, [2011] EWHC 2895 (Comm).

Corporate Immigration

Harper government introduces the protecting Canada's Immigration System Act
Gowling Lafleur Henderson LLP February 17 2012
Legislation to protect the integrity of Canada’s immigration system was introduced today by Citizenship, Immigration and Multiculturalism Minister Jason Kenney.

Corporate Tax

HST transitional rules – British Columbia
Fraser Milner Casgrain LLP February 17 2012
Immediate action is required for new housing sales effective February 18th, 2012.

CSA provide further guidance on disclosure of additional GAAP measures
Stikeman Elliott February 17 2012
The CSA announced today that it has updated Staff Notice 52-306 (Revised) to provide further guidance on the disclosure of additional GAAP measures presented under IFRS.

Canada Revenue Agency will no longer automatically back date a voluntary GST/HST registration
Cassels Brock & Blackwell LLP February 15 2012
Registration for the GST/HST is mandatory when a person becomes liable to charge and collect the GST/HST as a supplier of goods or services.

Derivatives

Collateral (un)damaged: Canadian regulators publish consultation paper on segregation and portability in OTC derivatives clearing
McMillan LLP February 17 2012
On February 10th, 2012, the Canadian Securities Administrators Derivatives Committee ("CSA Committee") published the third in a series of eight papers, entitled Consultation Paper 91-404 – Derivatives: Segregation and Portability in OTC Derivatives Clearing ("Consultation Paper 91-404").

Designs and trade secrets

Pharma in brief - Canada: Federal Court overturns the Minister of Health’s decision and grants data protection for THALOMID®
Norton Rose February 13 2012
On January 5, 2011, the Minister of Health (Minister) refused to include THALOMID (thalidomide) on the Register of Innovative Drugs under the data protection provisions of the Food and Drug Regulations (DPR) due to the prior approval of thalidomide in the drugs KEVADON and TALIMOL.

Employee Benefits & Pensions

Case update - Re Timminco Limited
Fraser Milner Casgrain LLP February 17 2012
Timminco Limited and Bécancour Silicon Inc. (together the “Timminco Entities”) sought and were granted protection under the CCAA on January 3, 2012.

OSFI provides more guidance re letters of credit
Osler, Hoskin & Harcourt LLP February 16 2012
Over the past two years we have seen a number of amendments to federal pension legislation with respect to the funding of defined benefit (DB) plans (see April 1, 2010 and December 17, 2010 posts).

The rise of pension misrepresentation claims in Canada
Borden Ladner Gervais LLP February 15 2012
Pension misrepresentation claims against Canadian employers and actuarial firms are on the rise.

New priorities? The Ontario Superior Court applies Indalex and reaches a different result
McCarthy Tétrault LLP February 13 2012
On February 2 and 9, 2012, the Ontario Superior Court released two decisions in the ongoing proceedings of Timminco Limited and Bécancour Silicon Inc. (together, the Timminco Entities) under the Companies’ Creditors Arrangement Act (CCAA) that further develop the law regarding pension claim priorities in insolvency proceedings.

Employment & Labor

Supreme Court upholds the latest pronouncements from the Quebec Court of Appeal on notice of termination of employment
Robinson Sheppard Shapiro February 20 2012
Some months ago, I noted that the Quebec Court of Appeal had defined the outer limits of “reasonable notice” required when terminating an employee without “cause” at 24 months, absent egregious conduct by the employer.

Conducting an effective interview: dos and don'ts during the hiring process from a human rights perspective
Blaney McMurtry LLP February 17 2012
In most circumstances, by the interviewing stage, the employer has already obtained some relevant job-related information from the employment application and the candidate’s resume.

WorkSafe BC introduces joint health and safety committee policy
Fraser Milner Casgrain LLP February 17 2012
WorkSafe BC (the Province’s occupational health and safety regulator) recently introduced policy guidelines which describe an employers’ responsibilities over its internal joint health and safety committee.

Ontario MOL blitz results: racking, mine ventillation, infection control
Fraser Milner Casgrain LLP February 16 2012
The Ontario Ministry of Labour has released the results of recent inspection blitzes dealing with racking and storage, underground mining ventillation, and infection prevention and control.

"Not rationally supported": Human Rights Tribunal decision overturned
Heenan Blaikie LLP February 16 2012
The Human Rights Tribunal in Ontario was set up as a direct access model in 2008, allowing employees to bring an Application directly to the Tribunal and obtain a hearing.

Proposed family caregiver leave could create a new 8-week leave for Ontario employees
Heenan Blaikie LLP February 14 2012
On December 8, 2011 we blogged about the Ontario Liberal Party’s plan to table amendments to the Employment Standards Act, 2000 (ESA) and introduce an eight week, unpaid “Family Caregiver Leave” to care for ill or injured family members.

Employees who resign retain rights to sue for wrongful dismissal
Lawson Lundell LLP February 13 2012
In the recent decision of Giza v. Sechelt School Bus Service Ltd., 2012 BCCA 18, the Court of Appeal for British Columbia held that an employee who quit his job after being given working notice of termination of employment was nevertheless entitled to sue for damages for wrongful dismissal for the period of reasonable notice in excess of the notice given.

The writing on the wall: social media, defamation and employment
Alexander Holburn Beaudin & Lang February 1 2012
Traditionally, the personal life of an employee has been just that: personal.

Energy & Natural Resources

Report issued by government review committee: two Alberta north-south transmission lines get green light
Gowling Lafleur Henderson LLP February 17 2012
On February 13, 2012 the Critical Transmission Review Committee struck by the Minister of Energy, the Honourable Ted Morton, on December 6, 2011, issued its report entitled Powering Our Economy: Critical Transmission Review Committee Report.

Drummond on energy
Stikeman Elliott February 17 2012
The much hyped Don Drummond Report released Wednesday is an appeal for a more sustainable and rational approach to fiscal policy in Ontario.

Expert panel endorses construction of two Alberta transmission lines
Davis LLP February 15 2012
As we previously reported, upon becoming Premier last fall, Alison Redford promised that certain proposed transmission projects which had been proposed as Critical Transmission Infrastructure would be "sent back to the drawing board."

Significant developments in Canadian energy - January 2012
Fraser Milner Casgrain LLP February 15 2012
Sunshine Oil Sands is considering an initial public offering to raise the $500 million required for construction of the first phase of the company’s West Ells oil sands project.

MNDM releases draft Mining Class Environmental Assessment for comment
Fraser Milner Casgrain LLP February 9 2012
The Ministry of Northern Development and Mines (“MNDM”) has released the revised Draft Class Environmental Assessment for Mining (the “Mining Class EA”) for public comment until February 21, 2012.

Environment

Joint U.S., Canada initiative to develop coordinated nanotechnology rules
Shook Hardy & Bacon LLP February 17 2012
According to a news source, the United States and Canada have begun to develop a coordinated model framework to regulate nanomaterials.

From whales to caribou: species protection could impact economic development
Blake Cassels & Graydon LLP February 14 2012
The Federal Court of Appeal (the Court) has issued its decision regarding a protection statement for the Northern and Southern Resident populations of the Killer Whale under the federal Species at Risk Act (SARA).

Important changes to Ontario's waste diverson programs announced
Davis LLP February 14 2012
On February 9, 2012, the Ministry of the Environment (the “Ministry”) announced a number of changes relating to the Waste Diversion Act (the “Act”).

General Practice

"Intrusion upon seclusion”: now out in the open
Gowling Lafleur Henderson LLP February 16 2012
In the recent decision Jones v. Tsige, the Ontario Court of Appeal has recognized a private right of action as a remedy against an invasion of privacy called “intrusion upon seclusion.”

Healthcare

Drummond report calls for systemic changes to health care
Fasken Martineau DuMoulin LLP February 17 2012
On February 15th, 2012 the Commission on the Reform of Ontario's Public Services (the "Commission") has released its much anticipated: Public Services for Ontarians: A Path to Sustainability and Excellence (the "Drummond Report").

Biosimilar battlegrounds - what is new in biosimilars and where?
Bereskin & Parr LLP February 17 2012
Biosimilars are second entry biologic drugs.

Federal Court of Canada grants data protection to an old medicinal ingredient
Torys LLP February 14 2012
In a recent decision – Celgene Inc. v. Canada (Minister of Health) – the Federal Court of Canada declared that a drug containing a previously approved medicinal ingredient is nevertheless subject to data protection.

Court declares drug eligible for listing on the register of innovative drugs
Borden Ladner Gervais LLP February 13 2012
In this case, Celgene judicially reviewed a decision of the Minister of Health not to list their drug THALOMID thalidomide on the Register of Innovative Drugs (the Register).

Other industry news
Borden Ladner Gervais LLP February 13 2012
On February 9, 2012, The U.S. Food and Drug Administration issued three draft guidance documents on biosimilar product development

Bill 127 and the review of the rules of internal management: setting standards for the governance of institutions
Heenan Blaikie LLP February 9 2012
As of February 1, 2012, most of the amendments to the Act respecting health services and social services brought under the Act to improve the management of the health and social services network (the former Bill 127) and applicable to institutions will be in force.

Information Technology

Animal Welfare International Inc. v. W3 International Media Ltd. 2011 BCSC 299
Gowling Lafleur Henderson LLP February 17 2012
Application by the plaintiff to settle the terms and conditions that should attach to the production of documents pursuant to an Order of the Court and to compel the defendant to produce certain documents.

A few words from the regulators…
Gowling Lafleur Henderson LLP February 16 2012
In December 2012, the Office of the Privacy Commissioner (OPC) announced a new guideline on behavioural advertising.

Federal online surveillance legislation
Alexander Holburn Beaudin & Lang February 16 2012
As has been widely reported in the media, on February 14, 2012 the Canadian government introduced Bill C-30, which deals extensively with online surveillance powers of the policing authorities, and with issues around criminal electronic communications.

Ontario CA recognises tort of invasion of privacy
Borden Ladner Gervais LLP February 9 2012
The law has been edging towards recognising invasion of privacy as a tort since about 1890.

Reasonable expectation of privacy in personal IP address
Borden Ladner Gervais LLP February 9 2012
The majority of the Saskatchewan Court of Appeal has concluded in R v Trapp, 2011 SKCA 143, that an individual has a reasonable expectation of privacy in the IP address assigned to him or her by an internet service provider, a point which appeared not to have been considered previously by an appellate court in Canada.

Insolvency & Restructuring

Insurance & Reinsurance

Baiden v. Canadian Universities Reciprocal Insurance Exchange
Harper Grey LLP February 15 2012
An insurer was found to have a duty to defend university employees in the context of claims by a former student for misappropriation of ideas and use of concepts.

Internet

Law Society of B.C.'s report to stay afloat of cloud computing
Stikeman Elliott February 16 2012
The Law Society of British Columbia’s Cloud Computing Working Group issued its Final Report on Cloud Computing on January 27, 2012, amending an earlier consultation report approved by the “Benchers” on July 15, 2011.

Supreme Court rules hyperlinks are not publications
Fraser Milner Casgrain LLP February 14 2012
In Crookes v Newton the Supreme Court held that the creation of a hyperlink to allegedly defamatory material was not publication of that material.

Broadcasting Act does not apply to Internet service providers
Blake Cassels & Graydon LLP February 14 2012
On February 9, 2012, the Supreme Court of Canada (the SCC) held in Reference re Broadcasting Act that Internet service providers (ISPs) are not subject to regulation by the Canadian Radio-television and Telecommunications Commission (CRTC) under the Broadcasting Act.

The writing on the wall: social media, defamation and employment
Alexander Holburn Beaudin & Lang February 1 2012
Traditionally, the personal life of an employee has been just that: personal.

Litigation

Trade-marks year in review 2011
Gowling Lafleur Henderson LLP February 15 2012
This paper will canvass key Canadian trade-mark decisions in 2011.

Onca to consider application of deemed undertaking rule to producing-party’s own lawyer
McCarthy Tétrault LLP February 15 2012
In Sobeski v. Mano, now on appeal to the Ontario Court of Appeal, Justice Perell heard a motion by a defendant in a defamation action for relief from the deemed undertaking rule.

Broken promises? Canadian patent claims don't fly
Blake Cassels & Graydon LLP February 13 2012
A recent Canadian decision has invalidated most of the claims of a patent for failure to meet the promised utility.

Ontario CA recognises tort of invasion of privacy
Borden Ladner Gervais LLP February 9 2012
The law has been edging towards recognising invasion of privacy as a tort since about 1890.

Law firm not liable for carefully worded third-party opinion
Borden Ladner Gervais LLP February 9 2012
Remember Marc Dreier?

Brief e-mail sufficient to create binding guarantee
Borden Ladner Gervais LLP February 9 2012
In a brief endorsement, the Ontario Court of Appeal has confirmed the trial judge’s finding that an enforceable obligation was formed in an e-mail exchange between Chris Hinn and Pintar Manufacturing.

Documents prepared for ‘simultaneous review’ by lawyers and non-lawyers not protected by privilege
Borden Ladner Gervais LLP February 9 2012
Master Short of the Ontario SCJ has followed US authority in holding that documents containing largely factual information that are sent by a party to non-lawyer personnel for their review, with a cc to the party’s lawyers, are not protected by solicitor-client privilege: Humberplex v TransCanada Pipelines, 2011 ONSC 4815.

Kidnapping isn’t ‘commercial activity’ and the State Immunity At is a complete code (mostly)
Borden Ladner Gervais LLP February 9 2012
Steen and Jacobsen were among 18 US citizens in Beirut who were kidnapped and held for ransom by Hezbollah in the 1980s.

Media & Entertainment

Is ACTRA off-side or did Labatt side step its obligations under the National Commercial Agreement?
Heenan Blaikie LLP February 17 2012
The Alliance of Canadian Cinema Television and Radio Artists (“ACTRA”) claims that Labatt breached its obligations under the National Commercial Agreement (“NCA”) by hiring non-union actors and paying non-union wages in its “Flash Fans” commercial that recently aired during the Canadian broadcast of the Super Bowl.

Guide to the 2012 games and the Olympic Association rights
Gowling Lafleur Henderson LLP February 16 2012
For readers advertising in the United Kingdom during the 2012 Olympic Games, a discussion of the Olympic Symbol etc.

Office Québécoise de la langue française targeting English marks on commercial signage in Québec
Gowling Lafleur Henderson LLP February 16 2012
On November 13, 2011, the Office Québécois de la langue française (OQLF) officially launched its “A sign of respect of the law” (“Une marque de respect de la loi”) campaign.

The first cut is the deepest - the right of directors to "cut" their films
Heenan Blaikie LLP February 13 2012
What does it mean to call something a "director's cut"?

The writing on the wall: social media, defamation and employment
Alexander Holburn Beaudin & Lang February 1 2012
Traditionally, the personal life of an employee has been just that: personal.

Patents

Biosimilar battlegrounds - what is new in biosimilars and where?
Bereskin & Parr LLP February 17 2012
Biosimilars are second entry biologic drugs.

Projects & Procurement

Public

Joint list of outcomes of Canadian Prime Minister Stephen Harper's visit to China
Gowling Lafleur Henderson LLP February 9 2012
At the invitation of Premier Wen Jiabao of the State Council of the People’s Republic of China, Canadian Prime Minister Stephen Harper paid an official visit to China from February 7 to 11.

Telecommunications

Trade & Customs

2011 year in review: antidumping and subsidy actions affecting Chinese products
Blake Cassels & Graydon LLP February 16 2012
The People's Republic of China typically has been a target of Canadian manufacturers who complain that Chinese exporters are selling “dumped” or “subsidized” goods into Canada, thereby causing “material injury” to Canada’s domestic industries.

Trademarks

Trade-marks year in review 2011
Gowling Lafleur Henderson LLP February 15 2012
This paper will canvass key Canadian trade-mark decisions in 2011.

White Collar Crime

Cayman Islands

Patents

Changes to patent and trade mark law in the Cayman Islands
Harney Westwood & Riegels February 16 2012
The Cayman Islands legislature recently passed the Patents and Trade Marks Law, 2011 (the “Law”) which repeals and replaces the previous law and introduces some significant changes to patent and trade mark law in the Cayman Islands, as summarized below.

Trademarks

China

Arbitration

Banking

Bad dim sum: lowered risk appetite hampering yuan's rise
Diaz Reus January 23 2012
Until as recently as November 2011, most investors had viewed the Chinese yuan (also called the “Renminbi”) as a one-way bet to appreciate in value.

Capital Markets

Corporate Finance/M&A

Foreign-funded investment companies allowed to use RMB income to invest directly in other companies
Frost Brown Todd LLC February 14 2012
On December 8, 2011, the Ministry of Commerce (“MofCom”) and the State Administration of Foreign Exchange (“SAFE”) jointly issued the Notice on Further Improving the Administrative Measurers for FICs

Corporate Immigration

New social insurance policy on foreigners enforced in Suzhou, Taicang, Kunshan, Zhangjiagang, Changshu and Wujiang
CMS, China February 2 2012
The Interim Measures on Participation in Social Insurance by Foreigners Working in China (“Interim Measures”) were issued by the PRC Ministry of Human Resource and Social Security on 6 September 2011 and came into force on 15 October 2011.

Energy & Natural Resources

NREL solar comparison
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The National Renewable Energy Laboratory published a presentation February 7 finding that Chinese solar producers hold no significant cost advantage over the United States counterparts when trans-oceanic shipping costs are factored into the equation.

Information Technology

Lessons from the Chinese hacking of Nortel for IT security, due diligence
Foley Hoag LLP February 20 2012
Recent press reports of massive Chinese-sponsored hacking at the one-time telecom giant Nortel might cause you to throw up your hands and say, what chance do I have against such forces?

Chinese apples
Drinker Biddle & Reath LLP February 15 2012
“Chinese apples” is an English term for pomegranate.

Data protection and privacy in China
White & Case LLP February 14 2012
China does not currently have a comprehensive legal framework to regulate the use and disclosure of personal data nor a nationallevel law that delineates how a company can legally collect, process and retain data together with legal remedies for specific violations.

Insurance & Reinsurance

Internet

New internet rules in China
Mayer Brown LLP February 15 2012
The PRC Ministry of Industry and Information Technology (“MII”) has recently promulgated “Several Provisions on Regulating the Market Order of Internet Information Services” (“Provisions”) to ensure a level playing ground for website operators in China and to enhance protection to Internet users in areas such as Internet security, web advertising and data protection.

Litigation

Trademark protection all sewn up for Levi Strauss's double-arc stitching
Wan Hui Da Law Firm & Intellectual Property Agency February 20 2012
The Shanghai Pudong District People's Court has held that four companies infringed Levi Strauss & Co's 'double-arc' mark by using a similar stitching on jeans.

The Supreme Court re-defines legitimate requirement in trademark use
Wan Hui Da Law Firm & Intellectual Property Agency February 16 2012
On December 17, 2011, the Supreme Court rejected an application for re-trial filed by Castel Frères SAS in a trademark non-use dispute.

Chinese apples
Drinker Biddle & Reath LLP February 15 2012
“Chinese apples” is an English term for pomegranate.

iPads being taken off shelves in China
Mayer Brown LLP February 14 2012
The "iPad" trade mark dispute between Apple Inc. ("Apple") and Proview Technology Shenzhen Company Limited ("Proview Shenzhen") in China has escalated.

Public

Telecommunications

Trade & Customs

Driving over the brink
Baker & Hostetler LLP February 17 2012
Two years ago, we reported that China was initiating an investigation, based on dumping and subsidy allegations, into imports of U.S. automobiles.

World Trade Organization: Chinese export restraints under attack
Blake Cassels & Graydon LLP February 16 2012
In one of the most significant World Trade Organization (WTO) dispute settlement decisions in 2011 to impact China, a dispute settlement panel (Panel) ruled on July 5, 2011 that a number of measures taken by China to restrict the export of raw materials were in violation of WTO rules.

Trademarks

China crackdowns on counterfeit goods
Venable LLP February 15 2012
In early February, the Chinese Ministry of Commerce announced that, in the first quarter of 2012, a number of Chinese Agencies will focus on cracking down on those making and selling counterfeit goods in rural China.

Chinese apples
Drinker Biddle & Reath LLP February 15 2012
“Chinese apples” is an English term for pomegranate.

White Collar Crime

SFO speaks on bribery compliance
SNR Denton February 17 2012
Richard Alderman has spoken on how it is important for businesses to set the tone from the top for Bribery Act compliance.

European Union

Arbitration

Contentious commentary
Clifford Chance LLP February 10 2012
By a series of regulations dating back to 2003, the EU introduced European Union Allowances, each of which is unique (but fungible) and exists on an electronic national register operating under an overall EU register.

Aviation

Commission opens in-depth investigation into French airport
Mayer Brown LLP February 14 2012
On 8 February 2012, the Commission announced that it has opened a state aid investigation into certain financial arrangements between La Rochelle airport and the French authorities.

EU airline rule could be altered
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
Jos Delbeke, director general of the European Commission’s climate department said February 7 that the International Civil Aviation Organization has a last chance to forestall the full inclusion of airlines in the European Union’s Emissions Trading System for greenhouse gases if it can agree on concrete emissions cutting measures within six to eight months.

Banking

EP adopts new SEPA legislation
SNR Denton February 17 2012
EP has voted in plenary session in favour of new legislation towards a faster payment service.

EBA consults on large exposures reporting
SNR Denton February 17 2012
EBA has published a consultation paper on a draft Implementing Technical Standard on reporting of large exposures.

EBA makes capital plan assessment
SNR Denton February 17 2012
EBA has made a preliminary assessment of the capital plans banks have submitted in response to EBA’s recommendation on recapitalisation.

Financial transaction tax
Orrick Herrington & Sutcliffe LLP February 15 2012
The application of a financial transaction tax on bond, equity and derivatives transactions in Europe continues to be intensely debated.

The SEPA regulation: the clock is ticking
Clifford Chance LLP February 15 2012
The SEPA Regulation will be the fourth major regulatory intervention within a decade designed to achieve a harmonised euro payments market and will apply to most credit transfer and direct debit transactions denominated in euros within the EU, setting 1 February 2014 as the migration deadline for credit transfers and for most direct debits.

Iran sanctions update
Eversheds LLP February 15 2012
In our previous note “Export control and sanctions guidance” published in our e-briefing dated 18 January 2012 we provided information relating to the impact of EU sanctions on Iran, in particular, the extent of such sanctions, to whom they apply and the penalties for breach.

FSA enforcement: review of 2011 and looking ahead
Freshfields Bruckhaus Deringer LLP February 13 2012
In this briefing, we review the Financial Services Authority’s 2011 enforcement activity and make some predictions about enforcement in the year to come.

EU political update: 13 - 17 February 2012
Clifford Chance LLP February 13 2012
The Danish Council Presidency last week reached an agreement with representatives of the European Parliament on the proposed Regulation on market infrastructures, over-the-counter (OTC) derivative transactions, central counterparties and trade repositories (EMIR).

International regulatory update
Clifford Chance LLP February 13 2012
The Danish EU Council Presidency has reached an agreement with representatives of the European Parliament on the proposed regulation on OTC derivatives and market infrastructures.

The euro zone crisis and commercial contracts: what if …?
McGuireWoods LLP February 13 2012
What would a complete or partial failure of the euro mean for the validity of commercial contracts?

The Eurozone crisis and loan agreements - the Dutch law perspective
Clifford Chance LLP February 8 2012
The Eurozone crisis continues to dominate the global economic landscape.

Capital Markets

ESMA publishes short-selling responses
SNR Denton February 17 2012
ESMA has published the responses it received to its consultation on technical standards for short-selling and credit default swaps.

European Commission publishes proposals on market abuse
Mason Hayes & Curran February 17 2012
The Market Abuse Directive (“MAD”) (2003/6/EC) was transposed into Irish law in July 2005 by the Market Abuse (Directive 2003/6/EC) Regulations 2005.

Commission welcomes EMIR agreement
SNR Denton February 17 2012
Michel Barnier welcomed the agreement on EMIR, but said it is now crucial to drive through the legislative changes that will complement it.

ESMA speaks on liquidity
SNR Denton February 17 2012
Steven Maijoor spoke on liquidity with a particular emphasis on EMIR.

Commission notes data protection concerns on reform
SNR Denton February 17 2012
The Commission has published a set of opinions by the European Data Protection Supervisor.

ECON and council agree EMIR
SNR Denton February 17 2012
Late on 9 February, the Economic and Monetary Affairs Committee in the EP announced it had finally struck a compromise deal with representatives from the European Council on the Regulation on OTC Derivatives, Central Counterparties and Trade Repositories (popularly known as the European Market Infrastructure Regulation or EMIR).

ESMA consultation paper on etfs and other UCITS
Mason Hayes & Curran February 17 2012
On 22 July 2011, the European Securities and Markets Authority (“ESMA”) published a discussion paper which set out policy orientations on guidelines for UCITS Exchange-Traded Funds (ETFs) and structured UCITS.

ESMA final report on systems and controls in an automated trading environment
Mason Hayes & Curran February 17 2012
On 22 December 2011 the European Securities and Markets Authority (“ESMA”) issued its final report on the systems and controls in an automated trading environment for trading platforms, investment firms and competent authorities.

ESMA issues consultation papers on aspects of the MiFID requirements for suitability and compliance
Mason Hayes & Curran February 17 2012
On 22 December 2011, the European Securities and Markets Authority (“ESMA”) issued two Consultation Papers on the Markets in Financial Instruments Directive (“MiFID”) requirements for suitability and compliance.

ECON publishes working papers on MiFID 2
SNR Denton February 17 2012
ECON has published two further working papers looking at specific aspects of the review of the Markets in Financial Instruments Directive.

ISDA welcomes EMIR agreement
SNR Denton February 17 2012
ISDA is pleased at the political agreement on EMIR.

ESMA consultation on future regulatory framework for ETFs and other UCITS issues
Dechert LLP February 16 2012
The European Securities and Markets Authority published on 30 January 2012 a consultation paper (ESMA/2012/44) setting out future guidelines on UCITS Exchange-Traded Funds and other UCITS-related issues.

Central rating repository
Dechert LLP February 16 2012
On 2 February 2012, ESMA announced the launch of the Central Rating Repository.

EMIR update
Dechert LLP February 16 2012
On 24 January 2012, the Council of the EU published further details of the proposed European Market Infrastructure Regulation following a meeting of ECOFIN.

Foreign listed stock index futures and options approvals
Katten Muchin Rosenman LLP February 15 2012
Attached please find the updated Foreign Listed Stock Index Futures and Options Approvals Chart, current as of February 15, 2012.

U.S. money market funds and the European sovereign debt crisis
Dechert LLP February 15 2012
The financial press recently reported that the U.S. Securities and Exchange Commission (“SEC”) will be proposing in the coming weeks new restrictions on U.S. money market funds (“money funds”), including capital requirements and a “liquidity fee” that would hold back a portion of a client’s account for 30 days in the event of a redemption.

ESMA consults on future regulation of exchange traded funds and other UCITS issues
Matheson Ormsby Prentice February 14 2012
On 31 January 2012, we circulated a brief update referring to the publication by the European Securities and Markets Authority (“ESMA”) of a consultation paper setting out draft guidelines on exchange traded funds (“ETFs”) and other UCITS issues.

Company & Commercial

Corporate liability in Europe
Clifford Chance LLP February 17 2012
This European survey of corporate criminal liability seeks, on a jurisdiction-by-jurisdiction basis, to answer some common questions on a subject which features regularly in boardroom agendas.

Competition

DOJ and EC release patents and standards policy statements
McGuireWoods LLP February 21 2012
The U.S. Department of Justice (DOJ) and European Commission (EC) both recently released key statements on their policies regarding patents and standards.

Wireless patent deals cleared by Justice Department, EU
Paul Weiss Rifkind Wharton & Garrison LLP February 17 2012
On Monday, the U.S. Justice Department and the European Union cleared key wireless patent deals that involve Google, Apple, Microsoft, and Research-In-Motion, while warning the parties that the government will not hesitate to act against abusive technology patent lawsuits that aim to thwart competition.

Tell all: whistleblowing to EU and national competition authorities
Mayer Brown LLP February 16 2012
The European Commission's Directorate General for Competition provides a leniency notice for companies wishing to whistleblow in relation to EU law infringements.

Parallel cartel enforcement actions in Europe
Gibson Dunn & Crutcher LLP February 16 2012
On February 14, 2012, the Court of Justice of the European Union (the "CJEU") delivered a landmark Judgment that clarifies the parallel application of EU and national competition law to infringements taking place before and after the accession of a Member State to the EU.

Reforms bring greater transparency to European Commission antitrust proceedings
Jones Day February 14 2012
The European Commission ("Commission") has adopted a package of antitrust procedural reforms designed to increase transparency and fairness in antitrust competition proceedings and advise parties on what they can expect at different stages of an antitrust investigation.

EU – Phase I merger notifications
Mayer Brown LLP February 14 2012
Click here to view table.

Eu – key merger clearances
Mayer Brown LLP February 14 2012
Click here to view table.

Almunia delivers speech on industrial policy and competition policy
Mayer Brown LLP February 14 2012
On 10 February 2012, Joaquín Almunia, Vice President of the European Commission (the “Commission”) and responsible for competition policy, delivered a speech in Paris entitled ‘Industrial policy and Competition policy: Quo vadis Europa?’.

Antitrust inspections in the energy exchange market
McDermott Will & Emery February 14 2012
On 7 February, the European Commission (EC) and the European Free Trade Association (EFTA) Surveillance Authority conducted unannounced inspections in the energy exchange market.

Commission publishes summary of Standard & Poor’s commitment decision
Mayer Brown LLP February 14 2012
On 4 February 2012, an official summary was published in the official journal detailing the Commission’s decision to accept binding commitments made by Standard & Poor’s in relation to fees for the distribution of US International Securities Identification Numbers.

Commission raids premises of companies active in managing power exchanges
Mayer Brown LLP February 14 2012
On 7 February 2012, the Commission announced that it had carried out dawn raids at the premises of companies active in managing power exchanges in several Member States.

Copyrights

FAPL v. the pubs: post-match analysis and insights
SNR Denton February 13 2012
Opposing football managers often present vastly different perspectives on matches played between their teams, each trying to claim that they fully deserved victory/were desperately unlucky in defeat.

Copyright for football fixture lists – AG opinion on Database Directive
Matheson Ormsby Prentice February 10 2012
Football Dataco Ltd and Others v Yahoo! UK Ltd and Others was referred to the ECJ by the UK Court of Appeal.

Corporate Finance/M&A

EVCA consultation handbook of professional standards
Dechert LLP February 16 2012
On 19 January 2012, the European Private Equity and Venture Capital Association published for consultation a revised draft of its handbook of professional standards on which it had originally consulted in June 2011.

Corporate Tax

Derivatives

ESMA speaks on liquidity
SNR Denton February 17 2012
Steven Maijoor spoke on liquidity with a particular emphasis on EMIR.

ESMA consults on short-selling technical advice
SNR Denton February 17 2012
ESMA has published its draft advice on technical measures under the Regulation on short-selling and credit default swaps.

Short selling: ESMA consults action on draft technical standards on the EU regulation on short selling and certain aspects of credit default swaps
Dechert LLP February 16 2012
On 24 January 2012, ESMA published a consultation paper regarding draft technical standards on the EU regulation on short selling and certain aspects of credit default swaps.

ISDA publishes provisions to address stolen EU emissions allowances
Minter Ellison February 13 2012
To adress potential issues which may arise if a seller in good faith sells stolen EU emissions allowances, the International Swaps and Derivatives Associations (ISDA) published in December 2011 additional provisions which can be optionally incorporated in ISDA's standard terms for EU emissions transactions.

Employee Benefits & Pensions

Tests-Achats – one year on
Mayer Brown LLP February 17 2012
It has been almost a year since the Tests-Achats ruling was made by the European Court of Justice (“ECJ”).

Reform of EU data protection laws
Mayer Brown LLP February 17 2012
The EC has proposed a comprehensive reform of EU data protection laws designed to substantially enhance data protection compliance throughout Europe.

Employment & Labor

Successive use of fixed term contracts to cover temporary absences
Shepherd & Wedderburn LLP February 13 2012
The European Court of Justice, in the case of Kucuk v Land Nordrhein-Westfalen, has considered the validity of a series of fixed-term employment contracts.

Energy & Natural Resources

ECHR finds that construction of LNG terminals did not breach human rights of local residents
Eversheds LLP February 20 2012
The European Court of Human Rights has recently delivered judgment confirming that the construction of liquefied natural gas (“LNG”) terminals in Milford Haven, South Wales did not breach the human rights of local residents.

Environment

Rio+20 energy and pricing goals
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
Speaking at a seminar about a report, Resilient People, Resilient Planet: A Future Worth Choosing, February 6, the European Union’s Climate Action Commissioner Connie Hedegaard said that the Rio+20 sustainable development conference should result in clear decisions on renewable energy and on the pricing of goods and services so that they accurately reflect the pollution they cause.

Healthcare

Biosimilar battlegrounds - what is new in biosimilars and where?
Bereskin & Parr LLP February 17 2012
Biosimilars are second entry biologic drugs.

Article 29 Working Party issues guidance on European Patients Smart Open Services
Hunton & Williams LLP February 14 2012
On January 25, 2012, the Article 29 Working Party (the “Working Party”) issued a Working Document providing guidance on data protection issues relating to the European Patients Smart Open Services (“epSOS”) project.

Information Technology

Torrenting of private photos prevented
Buddle Findlay February 20 2012
In the UK case of AMP vs Persons Unknown, [2011] EWHC 3454 (TCC), an unnamed British woman (AMP) has obtained an injunction to prevent anyone from distributing explicit images of her on the internet, including by using bittorrent technology.

Data protection: proposed European regime change
Mason Hayes & Curran February 17 2012
On 25 January 2012, the EU’s Justice Commissioner, Viviane Reding, announced a proposal for reform of the EU data protection regime.

Commission notes data protection concerns on reform
SNR Denton February 17 2012
The Commission has published a set of opinions by the European Data Protection Supervisor.

Planned EU data protection reform — effect on German and international businesses
Orrick Herrington & Sutcliffe LLP February 16 2012
The EU data protection regime is subject to comprehensive reform plans aimed at strengthening individuals' rights and creating uniformity on data protection rules in all EU member states.

The EU's data protection reform
Penningtons Solicitors LLP February 14 2012
On 25 January 2012, the European Commission announced its proposal for the comprehensive reform of the EU's data protection rules.

New EU data protection regulations could mean hefty fines for U.S. companies: how you should prepare
Lowenstein Sandler PC February 13 2012
As business continues to expand globally, the European Union is taking affirmative steps to enhance and consolidate its already strict privacy laws and regulations.

EC applauds UK for requiring explicit consent for communications intercepts
Steptoe & Johnson LLP February 11 2012
Internet users in the United Kingdom can rest assured that their country’s “law and institutions are now well-equipped to enforce” their privacy rights, according to European regulators, who last month closed a privacy infringement case against the UK over failure to properly implement European Union laws on electronic privacy and data protection.

European Commission releases final draft of proposed overhaul of data protection regulation in Europe
Alston & Bird LLP January 31 2012
The European Commission has released its final draft proposal for comprehensive reform of data protection standards in the European Union.

IT and outsourcing e-bulletin - a round-up of developments
Herbert Smith LLP January 31 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).

Insolvency & Restructuring

Insurance & Reinsurance

Tests-Achats – one year on
Mayer Brown LLP February 17 2012
It has been almost a year since the Tests-Achats ruling was made by the European Court of Justice (“ECJ”).

EU: Solvency II. Pillar 2. What's new?
Edwards Wildman Palmer LLP February 16 2012
The Malta Financial Services Authority has published a Guidance Paper on Solvency II's System of Governance.

Internet

Litigation

Tests-Achats – one year on
Mayer Brown LLP February 17 2012
It has been almost a year since the Tests-Achats ruling was made by the European Court of Justice (“ECJ”).

Italy referred to ECJ for failure to recover state aid
Mayer Brown LLP February 14 2012
On 8 February 2012, the Commission announced that it was referring Italy to the European Court of Justice (“ECJ”) for its failure to recover unlawful state aid granted to three metal producers, namely Porovesme, ILS and Eurallumina.

Media & Entertainment

European radio spectrum policy
Hogan Lovells February 16 2012
On January 15, the European Parliament accepted on second reading the proposed Radio spectrum policy programme (RSPP), designed to set EU strategy for radio spectrum management up to the year 2015.*.

Patents

Biosimilar battlegrounds - what is new in biosimilars and where?
Bereskin & Parr LLP February 17 2012
Biosimilars are second entry biologic drugs.

Further update on the prospects of a unitary patent system for Europe
Herbert Smith LLP January 31 2012
In 2011, there were several significant developments in relation to the proposals for the creation of a unitary patent for the member states of the European Union (the "EU countries") and a single European and EU Patents Court ("EEUPC").

Product Liability

New food contact materials legislation
Blake Lapthorn February 17 2012
The Food Standards Agency (FSA) is consulting on the proposed Materials and Articles in Contact with Food (England) Regulations 2012.

New legislation on fruit juices agreed
Blake Lapthorn February 17 2012
The European Parliament voted last month to approve a proposed directive which would amend the current EU legislation relating to fruit juices and certain similar products.

US, EU announce "historic" reciprocity arrangement on organic standards
Kelley Drye & Warren LLP February 16 2012
Yesterday, the United States and the European Union announced a reciprocity agreement that will allow access to both markets for products certified organic in either market.

Projects & Procurement

Commission publishes draft procurement directives
Mills & Reeve LLP February 13 2012
In late December, the European Commission published its draft legislative proposals on a replacement EU procurement directive (as well as a draft replacement utilities directive and a proposed new directive on concession contracts).

The Commission's new procurement directives: fifth time lucky?
Shepherd & Wedderburn LLP February 1 2012
After almost one year of consultation and consideration, the European Commission published its draft procurement directives on 20 December 2011.

Public

U.S. supportive of space code of conduct
Milbank, Tweed, Hadley & McCloy LLP January 31 2012
On January 17, U.S. Secretary of State Hillary Clinton remarked that the United States is interested in working with international partners to produce a space code of conduct that does not restrict U.S. national security activities in space.

Telecommunications

EU lawmakers outline proposal on mobile roaming fees
Paul Weiss Rifkind Wharton & Garrison LLP February 17 2012
Following a hearing conducted by the European People’s Party, the largest coalition in the European Parliament, consumer groups voiced displeasure with further proposed reductions in European Union caps on voice, text, and data roaming fees that they say remain far out of line with carriers’ actual costs of providing such services.

Trade & Customs

U.S., EU announce organic trade partnership
Shook Hardy & Bacon LLP February 17 2012
The Office of the U.S. Trade Representative (USTR) has announced a “historic new partnership” with the European Union that recognizes its organic standards as essentially equivalent to those administered by the U.S. Department of Agriculture (USDA).

International trade and customs update: U.S. deals with EU and Japan on “zeroing” practice herald significant changes in margin calculations for antidumping duty reviews
Thompson Hine LLP February 15 2012
The United States last week entered separate deals with the European Union and Japan to settle their successful World Trade Organization legal challenges to the U.S. antidumping duty practice known as "zeroing".

Commission orders Sweden to recover state aid
Mayer Brown LLP February 14 2012
On 8 February 2012, the Commission announced that the sale of a food production facility by a Swedish municipality involved illegal state aid in the form of a below market value sale price.

Consumer Rights Directive
Penningtons Solicitors LLP February 14 2012
The Consumer Rights Directive was published on 22 November 2011 and requires EU member states to introduce new consumer protection laws by 13 December 2013.

White Collar Crime

Commission notes corruption increase
SNR Denton February 17 2012
The Commission has published the results of research which shows corruption is increasing and that many Europeans feel bribery is a significant threat.

Finland

Capital Markets

New financial strength from real estate bonds
Castrén & Snellman February 15 2012
With the ongoing uncertainty in the markets, borrowed capital is hard to come by.

Commercial Property

New financial strength from real estate bonds
Castrén & Snellman February 15 2012
With the ongoing uncertainty in the markets, borrowed capital is hard to come by.

France

Aviation

Banking

Capital Markets

Commercial Property

French property ownership: dealing with relationship breakdown
Blake Lapthorn February 15 2012
International living is no longer just for the rich and famous.

Copyrights

Moving the legal joystick: can copyright become a real incentive for the videogames industry?
Ichay & Mullenex Avocats February 19 2012
The French Parliament has recently released a report on the legal status of videogames, following a six-month study led by MP Patrice MARTIN-LALANDE between May 30 and November 30 2011 upon the request of the Prime Minister (the “Report”).

Corporate Tax

New limitation of interest deductibility by French corporate taxpayers
Jones Day February 17 2012
Further to the introduction of thin-capitalization rules in 2007, which limited the deduction of interest accruing on intragroup debt financing and the enlargement of their scope in 2011 to third-party debt secured by guarantees provided by an affiliate, France has just introduced another limitation of the deductibility of interest expenses for holding companies.

Treasury issues proposed regulations on FACTA: joint statement issued with 5 European nations outlining an alternative approach
Fox Rothschild LLP February 15 2012
Congress, in 2010, enacted a new set of rules on the required reporting and withholding with respect to foreign financial accounts and nonfinancial foreign entities in Pub. L. No. 111-147, §501 (2010)(the “HIRE ACT”).

An intergovernmental approach to FATCA: US Treasury issues joint statement from the United States, France, Germany, Italy, Spain and the United Kingdom in connection with the issuance of proposed FATCA Regulations
White & Case LLP February 11 2012
On February 8, 2012, the Department of Treasury (the “Treasury”) and the Internal Revenue Service (the “Service”) issued proposed regulations under the Foreign Account Tax Compliance Act (“FATCA”).

Derivatives

Employment & Labor

French employers urged to proceed with caution when making redundancies
Squire Sanders February 16 2012
Two very recent Court of Appeal rulings mean that French employers carrying out redundancy exercises need to be careful to ensure the process is not rendered unlawful for the lack of an “economic motive”.

2011 employment law review
Dechert LLP February 9 2012
As of 1 January 2012, businesses with at least 50 employees (or which belong to a group with at least 50 employees), where at least 50% of employees are exposed to professional risks linked to strenuous working conditions, will be required to negotiate a company-level agreement or to establish an action plan to identify strenuous working conditions.

Energy & Natural Resources

France outlaws "fracking"
Jones Day February 15 2012
In response to public and parliamentary concern regarding the potential environmental impacts of hydraulic fracturing ("fracking"), the French government has outlawed this technique, the only currently known means of extracting shale gas and oils.

General Practice

French property ownership: dealing with relationship breakdown
Blake Lapthorn February 15 2012
International living is no longer just for the rich and famous.

Healthcare

Information Technology

Revente de billets de spectacle en ligne : opéra de paris débouté de toutes ses demandes face à viagogo
Ichay & Mullenex Avocats February 16 2012
Hier le Tribunal de Commerce de Paris, statuant en référé, a rendu une ordonnance dans l’affaire opposant l’Opéra National de Paris et la société Viagogo Limited qui héberge une bourse d’échange de billets sur Internet.

Internet

Litigation

Media & Entertainment

Product Liability

USDA report critical of France’s proposed BPA ban
Shook Hardy & Bacon LLP February 17 2012
The U.S. Department of Agriculture’s (USDA’s) Foreign Agriculture Service recently issued a Global Agricultural Information Network (GAIN) report concluding that a French proposal to prohibit all food packaging and materials containing bisphenol A (BPA) would “very likely… impact and jeopardize U.S. processed and other food exports to France.”

Trade & Customs

Germany

Banking

Capital Markets

Reorganisation of market segmentation on the Frankfurt Stock Exchange - February 2012
Clifford Chance LLP February 14 2012
On 6 February 2012, Deutsche Börse AG, the operator of the Frankfurt Stock Exchange, announced its intention to reorganise the segmentation and regulation of its exchange regulated market.

The new investment intermediary and investment product law
Clifford Chance LLP February 14 2012
The Bill to amend the investment intermediary and investment product law (Finanzanlagenvermittler- und Vermögensanlagenrecht, "FinVermG") adopted by the Federal Parliament (Bundestag) on 27 October 2011 was published in the Federal Law Gazette (Bundesgesetzblatt) on 12 December 2011.

Tightened disclosure obligations for major shareholdings and options
Freshfields Bruckhaus Deringer LLP February 9 2012
The tightened disclosure obligations for interests in German listed companies came into force in Germany on 1 February 2012.

Company & Commercial

Webcast: German law-developments 2011 and outlook 2012
Gibson Dunn & Crutcher LLP February 15 2012
While the members of the Eurozone are still struggling to find an adequate answer to the sovereign debt crisis and the stock markets are on a roller-coaster ride, the German economy is still doing remarkably well and continues — maybe now more so than in recent years — to offer attractive investment opportunities for foreign investors from all over the world.

Competition

German court protects the confidentiality of leniency submissions
McDermott Will & Emery February 14 2012
In the wake of the seminal European Court of Justice (ECJ) ruling in case C-360/09 - Pfleiderer AG v Bundeskartellamt, Amtsgericht Bonn (Bonn local court), in a decision rendered on 18 January 2012 (case 51 Gs 53/09), has refused to give a damages claimant access to leniency submissions held by the German Federal Cartel Office (FCO).

Corporate Finance/M&A

Corporate Immigration

Corporate Tax

Tax info
Latham & Watkins LLP February 16 2012
With the Act on the Implementation of the EU Mutual Assistance Directive and Changes in Tax Law (the Act) coming into effect on 1 January 2012 the German Anti Treaty-Shopping Rules will generally be significantly less strict.

Derivatives

Employment & Labor

German employers should notify employment agency of all job vacancies
Squire Sanders February 16 2012
The German Federal Labour Court has ordered an employer to pay compensation to a job applicant who claimed that he had been turned down for a job because of his disability.

Risks relating to the engagement of leased employees
CMS Hasche Sigle February 15 2012
The Federal Labour Court's recent CGZP decision has already had a considerable impact on Germany's temporary work sector.

2011 employment law review
Dechert LLP February 9 2012
As of 1 January 2012, the new Family Care Leave Act (Familienpflegezeitgesetz) came into effect.

Energy & Natural Resources

Environment

Uncertainty still surrounds carbon capture and storage legislation
Clifford Chance LLP February 20 2012
The German government was required to transpose the EU Carbon Capture and Storage Directive into national law.

Healthcare

Information Technology

Insolvency & Restructuring

Insurance & Reinsurance

Litigation

Product Liability

Global

Banking

FSB publishes deposit insurance review
SNR Denton February 17 2012
FSB has published a peer review on deposit insurance systems.

Recent developments in mortgage servicing rights
SNR Denton February 14 2012
Recent changes to the regulatory treatment of mortgage servicing rights ("MSR"s) for financial institutions subject to Basel III, together with political and prosecutorial pressures, have resulted in a substantial increase in incentives for financial institutions to transfer their residential MSRs.

Capital Markets

Commission calls for FICOD evidence
SNR Denton February 17 2012
The Commission is calling for views on the Financial Conglomerates Directive.

Derivatives

IOSCO report on trading of OTC derivatives
Dechert LLP February 16 2012
On 25 January 2012, the International Organisation of Securities Commission (“IOSCO”) published an analysis to its February 2011 report on trading of over-the counter derivatives (IOSCO delivered a February 2011 report to the Financial Stability Board in April 2011 and was requested to undertake further analysis on the current use of multi- and single-dealer platforms).

ISDA publishes industry provisions for collateral segregation of uncleared swaps
Orrick Herrington & Sutcliffe LLP February 15 2012
On December 6, 2011, the International Swaps and Derivatives Association, Inc. (“ISDA”) published sample tri-party provisions intended to assist market participants in the negotiation of provisions relating to the segregation of excess collateral, or “independent amounts.”

Employment & Labor

The 2011 global employer
Littler Mendelson February 15 2012
Littler Mendelson recently conducted its Fourth Annual Global Employer Institute (GEI) in Washington, D.C.

Environment

Maplecroft's "risk atlas" assesses climate change vulnerability
Jones Day February 15 2012
Some of the world's fastest growing population centers are at the greatest risk from impacts of climate change, according to the latest annual release of the "Climate Change and Environmental Risk Atlas" by Maplecroft, a UK-based risk analysis and mapping company that examined climate change risks and adaptive capacity in 193 countries, factoring in population concentration, development, natural resources, agricultural dependency, and conflict.

Investors call for "investment-grade" climate policy
Jones Day February 15 2012
Leading up to the latest round of United Nations climate negotiations in Durban, a group of 285 investors, collectively managing more than $20 trillion in assets, issued a "2011 Global Investor Statement on Climate Change," urging governments and institutional policy makers to take new policy action to stimulate private sector investment in climate change solutions.

United Nations's climate change conference in Durban makes incremental progress
Jones Day February 15 2012
The 17th Conference of the Parties ("COP-17") to the United Nations Framework Convention on Climate Change ("UNFCC") concluded in Durban, South Africa on December 11, 2011 after a 36-hour extension to the negotiations.

Insurance & Reinsurance

FSB publishes deposit insurance review
SNR Denton February 17 2012
FSB has published a peer review on deposit insurance systems.

Internet

Second application window for new gTLDs “reaffirmed” by ICANN
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 13 2012
Last week, during a special meeting of the ICANN Board of Directors, the ICANN Board approved a resolution that contained a “reaffirmation” that ICANN will open a second application window for the gTLD program “as expeditiously as possible.”

Intellectual property advisory: WIPO releases updated information on new gTLD legal rights objections
Steptoe & Johnson LLP February 13 2012
After much anticipation and preparation, the application period for the new generic top-level domain program opened on January 12, 2012 and will accept new entries until March 29, 2012 and remain open until April 12, 2012.

Trade & Customs

Peregrine Semiconductor files new complaint
McDermott Will & Emery February 16 2012
On February 15, 2012, Peregrine Semiconductor filed a complaint with the International Trade Commission seeking an investigation into the importation of certain radio frequency integrated circuits and products containing same.

Trademarks

Greece

Banking

Greece inches closer to triggering a credit event
Orrick Herrington & Sutcliffe LLP February 15 2012
With an enormous €14.5 billion bond maturing on March 20th, Greece continues to negotiate with its private sector investors on the reduction of approximately €100 billion of its total €350 billion of debt.

Derivatives

Guernsey

Corporate Tax

Guernsey to fight its QROPS corner
Guernsey Finance February 14 2012
When the proposed UK Finance Bill 2012 was published at the start of December it included draft legislation from Her Majesty’s Revenue and Customs (the Overseas Pension Schemes (Miscellaneous Amendments) Regulations 2012), which has quite far-reaching implications for Qualifying Recognised Overseas Pension Schemes.

Private Client & Offshore Services

Hong Kong

Banking

True sale or not - the nature of the factoring agreement
Mayer Brown LLP February 17 2012
Did you know...it has been argued that a factoring arrangement over invoices of a company could be challenged as a charge over book debts and thus is void against liquidators of the company unless registered under section 80 of the Companies Ordinance.

Capital Markets

Financial Statements Review Programme Report 2011
Mayer Brown LLP February 15 2012
On 13 January 2012, The Stock Exchange of Hong Kong Limited ("SEHK") published its "Financial Statements Review Programme Report 2011" ("Report") summarising the key observations and findings from its review of 100 periodic financial reports released by issuers between October 2009 and April 2011.

Phase 2 extension of trading hours
Mayer Brown LLP February 14 2012
The Stock Exchange of Hong Kong Limited (“SEHK”) launched a consultation about proposed changes to its trading hours in September 2010.

Revised HKSIR 400 “comfort letters and due diligence meetings”
Morrison & Foerster LLP February 13 2012
The Hong Kong Institute of Certified Public Accountants issued a revised HKSIR 400 in October 2011, which sets out the requirements and guidance for reporting accountants issuing a comfort letter or taking part in a due diligence meeting with sponsors for an offering of securities in Hong Kong.

Initiatives by the exchange
Morrison & Foerster LLP February 13 2012
Possible changes to the requirements for overseas companies seeking listings in Hong Kong, including those seeking secondary listings.

New and revised guidance letters
Morrison & Foerster LLP February 13 2012
In October 2011, the Exchange published a Guidance Letter (GL25-11, updated in November 2011) revising the existing conditions for granting waivers of Listing Rule 4.04(1).

Revised property valuation requirements
Morrison & Foerster LLP February 13 2012
In October 2011, the SFC and the Exchange jointly published the consultation conclusions on proposed changes to property valuation requirements for listing applicants and listed issuers.

Enforcement news
Morrison & Foerster LLP February 13 2012
In December 2011, Playmates Toys Limited (the “Company”), an executive director and a former executive director were publicly censured for failing to ensure the accuracy and completeness of the Company’s prospectus.

SFC Report on HKEx 2010 Performance
Morrison & Foerster LLP February 13 2012
In October 2011, the SFC published its annual review of the Exchange’s performance in regulating listing matters.

New listing decisions
Morrison & Foerster LLP February 13 2012
In November 2011, the Exchange updated its 2005 listing decision in relation to structured contracts (i.e., VIEs).

Commercial Property

Company & Commercial

Corporate Tax

Derivatives

Information Technology

The “iPad” trade mark dispute - Hong Kong chapter
Mayer Brown LLP February 16 2012
Following our legal update “iPads Being Taken off Shelves in China” focusing on the “iPad” trade mark dispute between Apple Inc. (“Apple”) and the Proview group in China, we have prepared this follow-up article in response to our readers’ interest - we will look at the dispute brought before the Hong Kong courts and, interestingly, the different findings.

Hong Kong Privacy Commissioner offers guidance for complying with data privacy ordinance
Hunton & Williams LLP February 16 2012
Since October 2011, the Hong Kong Office of the Privacy Commissioner for Personal Data has published three “Guidance Notes” to help data users comply with the Personal Data (Privacy) Ordinance (the “Ordinance”).

Insolvency & Restructuring

Insurance & Reinsurance

Insurance brokers entitled to receive commission payments
Freshfields Bruckhaus Deringer LLP February 10 2012
The decision is a clear indication that insurance companies or agents may continue with the practice of commission payments, but should take the following steps in association with such payments.

Litigation

Trademarks

India

Banking

Capital Markets

Corporate Finance/M&A

Indian Supreme Court holds for Vodafone
King & Spalding LLP February 20 2012
On January 20, the Indian Supreme Court handed down a major victory for foreign investors in the landmark case of Vodafone International Holdings B.V.

Supreme Court of India's Vodafone judgment: implications for international investors
White & Case LLP February 9 2012
On January 20, 2012, the Supreme Court of India (the “Supreme Court”) delivered a landmark judgment in Vodafone International B.V. v. Union of India & Anr.

Corporate Tax

Derivatives

Energy & Natural Resources

Healthcare

Indian official calls for passage of biotech regulatory legislation and increased VC funding
Shook Hardy & Bacon LLP February 16 2012
A biotechnology industry spokesperson has reportedly pointed to the lack of a proper regulatory framework in India as one of several hurdles the industry will have to surmount to grow.

Litigation

Product Liability

Telecommunications

Trade & Customs

India, Mexico continue to strengthen trade and investment ties
Diaz Reus January 23 2012
Blessed with a shared commitment to democracy, similar geography and climate, and large, thriving domestic markets, India and Mexico have continued to deepen their partnership in the global economy.

Iran

Banking

Energy & Natural Resources

US and international community continue to expand sanctions against Iran
Schulte Roth & Zabel LLP February 17 2012
On July 1, 2010, President Obama signed into law the Comprehensive Iran Sanctions Accountability, and Divestment Act of 2010 (“CISADA”),1 to protect the security and interests of the United States by helping to prevent Iran from developing nuclear weapons.

Insurance & Reinsurance

Public

U.S. Department of Treasury designates the Iranian Ministry of Intelligence and Security pursuant to anti-terrorism authority
Wiley Rein LLP February 16 2012
Amid the deteriorating diplomatic relationship between the United States and Iran, on February 16, 2012, the U.S. Department of Treasury announced the designation of the Iranian Ministry of Intelligence and Security (MOIS) for its support to terrorist groups, perpetration of human rights abuses against Iranian citizens and its role in supporting the Syrian regime's crackdown against the people of Syria.

Trade & Customs

United States freezes government of Iran assets; chart summarizing recent U.S. sanctions on Iran
Alston & Bird LLP February 15 2012
United States Freezes Government of Iran Assets; Chart Summarizing Recent U.S. Sanctions on Iran Effective February 6, 2012, the Obama Administration issued Executive Order No. 13599 (“E.O. 13599”), which requires United States persons to block all property and property interests of the government of Iran and all Iranian financial institutions (including, specifically, the Central Bank of Iran) that is subject to U.S. jurisdiction.

Key aspects of current US sanctions against Iran
SNR Denton February 14 2012
This Memorandum outlines recent developments with respect to the United States sanctions affecting the Islamic Republic of Iran (“Iran”).

Get ready to get out of Iran
Kelley Drye & Warren LLP February 8 2012
Congress and the White House, along with the European Union, have been very active lately making it increasingly difficult – if not entirely unfeasible – for U.S. firms to do business in Iran.

Iraq

Corporate Finance/M&A

Emerging Iraq
Eversheds LLP February 15 2012
As the last US soldiers rolled out of Iraq a week before Christmas, 2012 marks the beginning of a new chapter in Iraq’s socio-economic history.

Energy & Natural Resources

Emerging Iraq - opportunities and risks for the oil and gas industry
Eversheds LLP February 15 2012
There are fresh signs that 2012 will witness the beginning of a new chapter in Iraq’s socio-economic history, cementing its position as a key market for international investment, particularly in the energy and natural resources sector.

Emerging Iraq
Eversheds LLP February 15 2012
As the last US soldiers rolled out of Iraq a week before Christmas, 2012 marks the beginning of a new chapter in Iraq’s socio-economic history.

Ireland

Banking

Amendments to Central Bank notices and guidance notes
Mason Hayes & Curran February 17 2012
With effect from 23 December 2011, the Central Bank of Ireland (the “Central Bank”) has amended the following documents, the majority of which are technical in nature.

Central Bank to review business plans for SMICs
Mason Hayes & Curran February 17 2012
The Central Bank of Ireland (the “Central Bank”) will be reviewing business plans for existing UCITS Self-Managed Investment Companies (“SMICs”) in advance of the July 2013 deadline for compliance with the full UCITS IV regime.

Update on the appointment of directors through conduit firms
Mason Hayes & Curran February 17 2012
On 21 December 2011, the Central Bank of Ireland (the “Central Bank”) issued a letter to the industry regarding director appointments via conduit firms.

Fitness and Probity update
Mason Hayes & Curran February 17 2012
As we previously reported, the Central Bank of Ireland’s (the “Central Bank”) new regime of Fitness and Probity, which applies to all regulated financial service providers (“RFSPs”) (other than credit unions), including regulated funds and their Irish licensed service providers, came into effect on 1 December 2011.

Central bank publishes its enforcement priorities for 2012
A&L Goodbody February 14 2012
The Central Bank of Ireland yesterday published its enforcement priorities for 2012.

Capital Markets

Further growth of international fund servicing in Ireland
Mason Hayes & Curran February 17 2012
The recently published Lipper 17th Annual Fund Encyclopaedia reported a year-on-year increase of close to 30% in the assets serviced by the funds industry in Ireland.

Amendments to Central Bank Application Forms
Mason Hayes & Curran February 17 2012
The Central Bank has amended its Application Forms to reflect recent changes to the UCITS Notices, NU Series of Notices and Guidance Notes.

Value of Irish domiciled funds passes the €1 trillion mark
Mason Hayes & Curran February 17 2012
Statistics released by the Central Bank as at the end of November 2011, show the net asset value of Irish domiciled funds reaching a record high and exceeding €1 trillion.

Central Bank to permit dividend payments from capital
Mason Hayes & Curran February 17 2012
Following submissions made by the Irish Funds Industry Association the Central Bank agreed, on 14 February 2012, to revise its existing policy which did not permit distributions out of capital by retail investment funds, provided that certain disclosures are made in the relevant fund documentation.

Irish funds industry welcomes positive FATCA development
Mason Hayes & Curran February 17 2012
The Irish Funds Industry Association (IFIA) has welcomed the news that European fund managers stand to save up to a reported $1 billion in costs associated with reporting obligations under FATCA.

New Irish finance legislation provides certainty under UCITS IV
Mason Hayes & Curran February 17 2012
The Finance Bill 2012 was published on 8 February 2012 and reflects Finance Minister Michael Noonan's commitment in his Budget speech in December 2011 "to introduce a package of measures in the Finance Bill to support the continued success of the international funds industry”.

Commercial Property

Planning and judicial review - not the right remedy?
Mason Hayes & Curran February 20 2012
In Devils Glen Equestrian Centre Limited v Wicklow County Council [2010] IEHC 356, the High Court repeated what has been settled law for almost 25 years, namely that (a) judicial review can only be used in very limited circumstances to challenge a planning decision and (b) the courts have set a very challenging threshold for success even if judicial review is a possible remedy.

Competition

2012 report on pharmaceuticals delivery in Ireland: "delivery of pharmaceuticals in Ireland - getting a bigger bang for the buck"
A&L Goodbody February 14 2012
Ireland's Health Service Executive (HSE) recently commissioned and funded a report from the Economic and Social Research Institute (ESRI).

Construction

Change in revenue treatment of a board of management for school building projects
Mason Hayes & Curran February 2 2012
If you are commencing a school building project (including emergency works, summer works, additional accommodation or major buildings and extensions), the board of management need to be aware of and ensure compliance with this recent legislative change which came into effect on 1 January 2012.

Corporate Finance/M&A

Irish Takeover Panel consultation on proposed changes to the Irish Takeover Rules
A&L Goodbody February 14 2012
As mentioned in last week's Bulletin, the Irish Takeover Panel has published a consultation paper proposing a number of changes to the Irish Takeover Rules.

Corporate Tax

New protocol to Ireland/Switzerland Double Tax Agreement
Mason Hayes & Curran February 17 2012
On 26 January 2012, the Irish government signed a protocol amending its existing Double Taxation Agreement (“DTA”) with Switzerland.

Ireland/United Arab Emirates double tax agreement
Mason Hayes & Curran February 17 2012
On 1 July 2010, the Irish government signed a Double Taxation Agreement (“DTA”) with the United Arab Emirates (“UAE”).

Finance Bill 2012 highlights
A&L Goodbody February 14 2012
The recently published Finance Bill includes various measures intended to stimulate economic growth in Ireland.

Healthcare

Litigation

Public

White Collar Crime

Updated guidelines on the Criminal Justice (Anti-Money Laundering and Terrorist Financing) Act 2010
A&L Goodbody February 14 2012
On 10 February, the Department of Finance published updated guidelines on the Criminal Justice (Anti-Money Laundering and Terrorist Financing) Act 2010.

Italy

Banking

Further shake-up on bancassurance and payment protection insurance
DLA Piper February 14 2012
On December 6 2011 the Italian insurance regulator, ISVAP, issued Note 2946, which supplements Article 48 of its Regulation 5/2006.

Capital Markets

Company & Commercial

Participative financial instruments: what opportunities?
Portolano Colella Cavallo Studio Legale February 17 2012
Participative financial instruments (the “Strumenti Finanziari Partecipativi - SFP”) have been introduced by Legislative Decree no. 6 of January 17, 2003 (the “Reform”) by amending the existing article 2346, paragraph 6, of the Italian civil code.

Corporate Tax

Derivatives

Energy & Natural Resources

Healthcare

Healthcare legal update: Recovering monies due from public bodies overseas
Eversheds LLP February 28 2012
The recovery of monies from national and regional governments, municipalities and public bodies in general is commonly considered to be a “chronic” issue in Italy.

Information Technology

Insurance & Reinsurance

Litigation

Class action reform
Clifford Chance LLP February 13 2012
A class action is a form of legal action devised to protect the 'homogeneous' individual rights of consumers and users, which was introduced (after several unsuccessful attempts) on 1 January 2010 with the entry into force of section 140-bis of the Italian Consumer Code.

Product Liability

Public

Trade & Customs

Japan

Banking

Settlement of mortgage as gratuitous act
Jones Day February 17 2012
A Tokyo District Court decision is a useful example of the application of the avoidance rules in the context of group company financing.

Capital Markets

Corporate Tax

Derivatives

Information Technology

Insolvency & Restructuring

Insurance & Reinsurance

Trade & Customs

Jersey

Litigation

Revoking the irrevocable: court rules on trust assets
Ogier February 16 2012
The Jersey court recently considered whether excluding someone irrevocably from benefiting from trust assets means just that, even if there were no error involved in the exclusion.

Private Client & Offshore Services

Jordan

White Collar Crime

Middle East: high-profile corruption arrests in Jordan
Edwards Wildman Palmer LLP February 15 2012
In the past few months, two high-profile Jordanians have been arrested on corruption charges.

Kazakhstan

Banking

Proceedings with a legitimate purpose and an illegitimate collateral purpose: what is a court to do?
Borden Ladner Gervais LLP February 9 2012
JSC BTA Bank (controlled, since entering receivership, by the government of Kazakhstan) sought to recover $1.8 billion in assets allegedly misappropriated by Mukhtar Ablyazov during his tenure as chairman of the bank.

Litigation

Luxembourg

Employment & Labor

2011 employment law review
Dechert LLP February 9 2012
A law dated 28 October 2011 implemented the provisions of the EU Directive 2010/76/EU (known as the Capital Requirements Directive III or CRD III) in Luxembourg.

Litigation

Mexico

Trade & Customs

Netherlands

Banking

The Eurozone crisis and loan agreements - the Dutch law perspective
Clifford Chance LLP February 8 2012
The Eurozone crisis continues to dominate the global economic landscape.

Capital Markets

UCITS notifications in the Netherlands
Clifford Chance LLP February 14 2012
The UCITS IV Directive was implemented in the Netherlands in July 2011.

Corporate Tax

Derivatives

Information Technology

Insurance & Reinsurance

New Zealand

Competition

Overseas defendants and the long (jurisdictional) arm of the law
Bell Gully February 14 2012
Commerce Commission v Deutsche Bahn AG & Ors (High Court, Auckland, CIV-2010-404-005479, 12 October 2011, Justice Venning) represents the latest challenge by an overseas defendant to the jurisdiction of New Zealand courts over alleged anti-competitive conduct occurring overseas.

Copyrights

SOPA and PIPA - implications for New Zealand websites
Buddle Findlay February 20 2012
For many, encountering Wikipedia's blacked-out landing page in mid-January was the first that they had heard of SOPA (Stop Online Piracy Act) and PIPA (Prevent Real Online Threats to Economic Creativity and Theft of Intellectual Property Act*), two US legislative measures aimed at preventing foreign websites from enabling or facilitating infringement of US copyright.

Megaupload shutdown signals risks in the cloud
Buddle Findlay February 20 2012
The file storage and viewing websites run by Megaupload were shut down by the US Justice Department in January 2012 alleging copyright infringement.

Corporate Finance/M&A

Overseas Investment Act
Buddle Findlay February 17 2012
The decision by the High Court on 15 February to set aside the consent granted to Shanghai Pengxin's subsidiary Milk NZ to acquire the Crafar farms is the latest twist in the long-running Crafar farms saga.

Corporate Tax

Budget Policy Statement
Minter Ellison February 17 2012
Finance Minister Bill English delivered the Budget Policy Statment yesterday, as a forecast of the Budget due in May.

Environment

High Court sets aside Crafar farms OIO consent
Minter Ellison February 16 2012
In a decision yesterday, the High Court has decided that the Overseas Investment Office's decision to grant consent to Shanghai Pengxin to buy the Crafar dairy farms must be reconsidered.

Environmental reforms gather pace
Buddle Findlay February 16 2012
As the National-led Government settles into a second term in office New Zealanders can expect a programme of wide-ranging environmental law reform and policy development.

Changes to the ETS proposed to implement the 2011 Review Panel's recommendations
Minter Ellison February 13 2012
The Government will continue to implement the recommendations of the 2011 ETS Review Panel during 2012.

Carbon credit leasing
Minter Ellison February 13 2012
Recently forest owners have been targeted to lease the carbon credit component of their forests.

Applications for industrial allocations opened in January 2012
Minter Ellison February 13 2012
On 1 January 2012, applications for the allocation of New Zealand Units (NZU) opened for firms carrying out eligible industrial activities a set out in the Climate Change (Eligible Industrial Activities) Regulations 2010 (2010 Regulations).

Restrictions on the use of HFC-23 and N20 CERs
Minter Ellison February 13 2012
With effect from 23 December 2011, participants in New Zealand's Emissions Trading Scheme (ETS) will not be able to surrender Certified Emission Reductions units from HFC-23 and N20 industrial gas destruction projects to meet their obligations under the scheme.

Healthcare

It lives! ANZTPA rises from the dead
Clayton Utz February 21 2012
The joint Australian and New Zealand therapeutic goods agency is back on the agenda.

Information Technology

Submissions due for the Privacy (Information Sharing) Bill and Electronic Identity Verification Bill
Minter Ellison February 20 2012
The Privacy (Information Sharing) Bill recently had its first reading and has been referred to the Justice and Electoral Select Committee with submissions due by 23 March.

Government launches its government cloud programme
Buddle Findlay February 20 2012
Recently the Department of Internal Affairs (DIA) posted a Registration of Interest (ROI) notice on GETS (the government's electronic tendering site) inviting suppliers to contribute to the development of an indicative business case for the government's adoption of cloud computing services.

Insolvency & Restructuring

Are trading trusts getting an easy ride, Law Commission asks
Chapman Tripp February 21 2012
The Law Commission is looking into whether the regulation of trading trusts gives enough protection to creditors and beneficiaries in circumstances of insolvency.

Internet

Litigation

Private Client & Offshore Services

Product Liability

It lives! ANZTPA rises from the dead
Clayton Utz February 21 2012
The joint Australian and New Zealand therapeutic goods agency is back on the agenda.

Public

Sitting programme and legislative agenda
Minter Ellison February 17 2012
In this Policy Update we report on some recent developments in Wellington, and note some current public consultation processes that you may find of interest.

Open consultations
Minter Ellison February 17 2012
Government agencies are currently accepting submissions on the following matters.

Asset sales
Minter Ellison February 17 2012
The other main limb of the Government's economic strategy is to extend the Mixed Ownership Model to other SOEs.

Government restructuring set to continue in 2012
Bell Gully February 16 2012
Indications from the Prime Minister at a press conference on Monday confirm plans to further revamp the public sector during a second term in power.

Oman

Banking

The redefined State Financial and Administrative Audit Institution
Curtis Mallet-Prevost Colt & Mosle LLP February 14 2012
In the first half of 2011, the government body formerly known as the “State Audit Institution” was renamed as the “State Financial and Administrative Audit Institution” pursuant to Royal Decree 27/2011.

Company & Commercial

Employment & Labor

Health and safety in the workplace
Curtis Mallet-Prevost Colt & Mosle LLP February 15 2012
The Regulation provides for a comprehensive regulatory framework with the aim of improving health and safety standards in the workplace and protecting workers from various occupational hazards.

Qatar

Capital Markets

Qatar Financial Markets Authority adopts new regulation for offering and listing securities on the second market
White & Case LLP February 6 2012
In January 2012, the Qatari financial regulator, the Qatar Financial Markets Authority (the “QFMA”), adopted a new regulation (the “New Regulation”) governing the offering and listing of securities on a second market of the Qatar Exchange (“QE”), which is now officially known as the QE Venture Market.2 The QE Venture Market is intended for small and medium-sized enterprises (“SMEs”).

Russia

Arbitration

Arbitrability of corporate disputes in Russia
Clifford Chance LLP February 10 2012
Last week two Russian court decisions were published which are important for the purpose of determining from the standpoint of Russian law whether so-called "corporate disputes" can be resolved by arbitral tribunals, including in the framework of international commercial arbitration.

Banking

Updated – Russian Foreign Strategic Investments Law: a step forward on the way to liberalization or a decorative dash?
Dechert LLP February 14 2012
At the Berlin forum of German business leaders held in November 2010, Russian Prime Minister Vladimir Putin declared that the clearance procedure for foreign investments in Russian strategic sectors would be simplified in the near future.

Banks to increase their internal funds (capital)
Dechert LLP February 14 2012
On January 1, 2012, new internal funds (capital) requirements came into force, requiring the amount of internal funds (capital) to open a new bank to be 300 million rubles.

Speaker’s corner: Liam Halligan
CMS, Russia February 1 2012
Liam Halligan is currently Chief Economist for Russian asset manager Prosperity Capital Management.

Capital Markets

Speaker’s corner: Liam Halligan
CMS, Russia February 1 2012
Liam Halligan is currently Chief Economist for Russian asset manager Prosperity Capital Management.

Company & Commercial

Legislation to increase the protection of creditors in the case of decreases to the charter capital of a company
Dechert LLP February 14 2012
The procedure for decreasing the charter capital of a limited liability company (LLC) and certain regulations regarding monitoring and calculating net assets of LLCs and joint stock companies were recently significantly modified.

Competition

Unfair competition in connection with the use of stolen or misappropriated information technology in business operations: Russian regulatory norms and international legal aspects
Dechert LLP February 14 2012
Unfair competition laws adopted by the state of Washington and Louisiana in the U.S., are the first in a growing trend of legislation meant to penalize manufacturers or related third parties for using stolen or misappropriated information technology in any part of the sales process; the laws will have cross border implications for offenders.

Corporate Finance/M&A

Speaker’s corner: Liam Halligan
CMS, Russia February 1 2012
Liam Halligan is currently Chief Economist for Russian asset manager Prosperity Capital Management.

Inbound M&A
CMS, Russia February 1 2012
Inbound deal volume has been increasing steadily since 2009, after seeing a sharp decline from 2007 to 2009 during the darkest days of the global financial crisis.

Government
CMS, Russia February 1 2012
Modernisation of the economy has been at the heart of Russian policymaking in recent years, resulting in widespread privatisation efforts across several different sectors.

The mid-market
CMS, Russia February 1 2012
M&A in the mid-market, defined here as deals up to €100m in value, resisted the overall downward trend in Russian M&A in 2011.

Market research
CMS, Russia February 1 2012
Against the backdrop of a challenging 2011, the results of this year’s survey show that respondents are, on the whole, more bearish than they were at this time last year.

Foreword
CMS, Russia February 1 2012
As the global economic crisis gradually retreats into history, the Deal Drivers annual survey offers some perspective on the trends affecting deal making in Russia in the post-crisis environment.

Outbound M&A
CMS, Russia February 1 2012
Outbound M&A had to contend with volatile markets and a fragile European banking system in 2011, so it comes as little surprise that aggregate outbound deal value decreased by 19% from the previous year.

The year in review
CMS, Russia February 1 2012
The Russian M&A market came under increased pressure in 2011 from lingering uncertainty in the eurozone and global market volatility.

Corporate Immigration

Quota-exempt professions for 2012 approved
Baker & McKenzie February 17 2012
The list of quota-exempt professions of foreign employees for 2012 has been published on 8 February 2012 and will come into legal force on 18 February 2012.

Corporate Tax

Amendments to transfer pricing rules
Dechert LLP February 14 2012
On January 1, 2012, new transfer pricing rules came into force requiring taxpayers to notify the tax authorities of all controlled transactions, including cross-border transactions involving oil, oil products, certain metals, fertilizers, as well as transactions involving foreign entities registered in special-tax districts (as determined by the Finance Ministry).

Employment & Labor

2011 employment law review
Dechert LLP February 9 2012
As of 1 June 2011, the minimum wage in the Russian Federation (the “RF”) was raised to RUB 4,611 per month.

Energy & Natural Resources

Speaker’s corner: Liam Halligan
CMS, Russia February 1 2012
Liam Halligan is currently Chief Economist for Russian asset manager Prosperity Capital Management.

Franchising

Russian companies to report their financial figures in accordance with international financial reporting standards (IFRS)
Dechert LLP February 14 2012
From January 1, 2012, certain Russian companies are required to report their financial results according to international standards.

Intellectual Property

Russia on its way to establishing a specialized IPR court
Dechert LLP February 14 2012
The United States encourages Russia to pass legislation establishing a specialized IPR court.

Litigation

Russia on its way to establishing a specialized IPR court
Dechert LLP February 14 2012
The United States encourages Russia to pass legislation establishing a specialized IPR court.

2011 employment law review
Dechert LLP February 9 2012
As of 1 June 2011, the minimum wage in the Russian Federation (the “RF”) was raised to RUB 4,611 per month.

If you’re afraid of wolves, don’t go into the forest
Borden Ladner Gervais LLP February 9 2012
So says the Russian proverb.

Public

Trade & Customs

WTO membership will provide needed boost to investment climate in Russia
Dechert LLP February 14 2012
On December 16, 2011, after 18 years of negotiations, the Russian Federation was officially invited to join the World Trade Organization (WTO) during the WTO Ministerial Conference in Geneva.

Russia on its way to establishing a specialized IPR court
Dechert LLP February 14 2012
The United States encourages Russia to pass legislation establishing a specialized IPR court.

Saudi Arabia

Capital Markets

Middle East exchange
Herbert Smith LLP February 14 2012
Draft new insolvency law for the UAE - is a big clean-up of delinquent debtors on the way?.

Insolvency & Restructuring

Middle East exchange
Herbert Smith LLP February 14 2012
Draft new insolvency law for the UAE - is a big clean-up of delinquent debtors on the way?.

Litigation

Middle East exchange
Herbert Smith LLP February 14 2012
Draft new insolvency law for the UAE - is a big clean-up of delinquent debtors on the way?.

Singapore

Banking

The Court of Appeal's landmark decision on schemes of arrangement
WongPartnership February 20 2012
The Singapore Court of Appeal recently issued a landmark decision on schemes of arrangement in the case of The Royal Bank of Scotland NV & Ors v TT International Limited [2012] SGCA 9.

Capital Markets

Corporate Tax

Tax bites - Singapore budget 2012
Rajah & Tann LLP February 21 2012
The Budget Speech was delivered by Minister for Finance, Mr. Tharman Shanmugaratnam, on Friday, 17 February 2012.

Derivatives

MAS proposed new regulatory framework for OTC derivatives
WongPartnership February 16 2012
On 13 February 2012, the Monetary Authority of Singapore ("MAS") issued two consultation papers: "Consultation Paper on Transfer of Regulatory Oversight of Commodity Derivatives from IE to MAS" and "Consultation Paper on Proposed Regulation of OTC Derivatives".

Insolvency & Restructuring

Litigation

South Africa

Banking

Banking secrecy: the end of the world as we know it...
DLA Cliffe Dekker Hofmeyr February 17 2012
The hit song “It’s the End of the World as We Know It (And I Feel Fine)” is featured on the 1987 album Document by the rock band R.E.M.

Exchange Control Regulations
Eversheds LLP February 15 2012
In terms of the Exchange Control Regulations ("the Regulations"), every transaction in which a South African natural or juristic person transacts with a non South African party; and In terms of which transaction, funds flow out or are likely to flow out of South Africa, is subject to regulation.

Corporate Tax

When can SARS issue a “jeopardy assessment”?
DLA Cliffe Dekker Hofmeyr February 17 2012
The Tax Administration Bill (TAB) will soon be signed into law as the Tax Administration Act (TAA).

Employment & Labor

Application of labour relations act to second-generation outsourcing
ENS - Edward Nathan Sonnenbergs February 15 2012
The Constitutional Court judgment in Aviation Union of South Africa v South African Airways (Pty) Limited has become available.

Litigation

When can SARS issue a “jeopardy assessment”?
DLA Cliffe Dekker Hofmeyr February 17 2012
The Tax Administration Bill (TAB) will soon be signed into law as the Tax Administration Act (TAA).

Public

Broad-based black economic empowerment in South Africa
Eversheds LLP February 15 2012
Broad-Based Black Economic Empowerment ("B-BBEE") is a legislative policy to advance economic transformation and enhance the economic participation of historically disadvantaged black people in the South African economy.

Spain

Banking

Capital Markets

Corporate Tax

Derivatives

Employment & Labor

Monitoring at work: Spanish employer did not breach employee's right to privacy
Squire Sanders February 16 2012
The Spanish Supreme Court has ruled that the dismissal of an employee for using her work computer for personal purposes was lawful.

Spain introduces radical labour market reforms
Squire Sanders February 15 2012
Spain’s new Conservative Government has outlined reforms aimed at reviving the economy and promoting employment, especially amongst young people and the long-term unemployed.

First comments on a thorough reform of employment legislation
Clifford Chance LLP February 14 2012
On 12 February 2012, Royal Decree-Law 3/2012 of 10 February, was passed, on urgent measures to reform the employment market (hereinafter, the “RDL”).

II Agreement on Employment and Collective Bargaining 2012, 2013 and 2014
Herbert Smith LLP February 13 2012
In the context of the profound reform that is being undertaken in the Spanish labour market, one of the most significant changes expected affects the regulation of collective bargaining.

Energy & Natural Resources

Temporary suspension of financial incentives for new renewable energy projects
Latham & Watkins LLP February 20 2012
The Spanish Government has passed a Royal Decree temporarily suspending pre-allocation registration as well as abolishing financial incentives for new energy production projects from cogeneration, renewable energy sources and waste.

Environment

Healthcare

Information Technology

Litigation

Product Liability

Sweden

Trade & Customs

Switzerland

Corporate Tax

Syria

Banking

Energy & Natural Resources

Insurance & Reinsurance

Public

Taiwan

Competition

Fair Trade Commission set forth guideline for Antitrust Compliance Regulations and Code of Business Conduct for Antitrust Compliance
Tsai Lee & Chen February 14 2012
With the increasingly harsh international law enforcement of antitrust, Taiwan manufacturers have often been imposed huge fines for accidental violation over the recent years.

United Arab Emirates

Capital Markets

NASDAQ Dubai consults on new admission and disclosure standards
Latham & Watkins LLP February 14 2012
On 6 February 2012, the NASDAQ Dubai securities exchange, which is based in the Dubai International Financial Centre (the DIFC), opened its proposed new Admission and Disclosure Standards (the ADSs) for public consultation.

Middle East exchange
Herbert Smith LLP February 14 2012
Draft new insolvency law for the UAE - is a big clean-up of delinquent debtors on the way?.

Company & Commercial

Dubai expands the jurisdiction of its DIFC courts
Diaz Reus February 12 2012
In a significant move, the Dubai government recently expanded the jurisdiction of the Dubai International Financial Centre Courts (the “DIFC Courts”) which will allow any parties, even those not incorporated within the DIFC free zone, to use the DIFC Courts to resolve commercial disputes.

Corporate Finance/M&A

Arab Spring boosts investment in the UAE
Diaz Reus February 12 2012
Political and social turmoil often disrupt business operations.

Corporate Tax

Insolvency & Restructuring

Middle East exchange
Herbert Smith LLP February 14 2012
Draft new insolvency law for the UAE - is a big clean-up of delinquent debtors on the way?.

Litigation

Middle East exchange
Herbert Smith LLP February 14 2012
Draft new insolvency law for the UAE - is a big clean-up of delinquent debtors on the way?.

Trademarks

Protecting your trademark in the UAE
Diaz Reus January 19 2012
Most company executives often focus on setting up businesses in new jurisdictions, expanding an existing business or improving the quality of their goods or services.

United Kingdom

Banking

FOS sets out pre-complaint referral guidance for Claims Management Companies
Eversheds LLP February 21 2012
In its recently issued guidance, the Financial Ombudsman Service (“FOS”) has increased the pressure on Claims Management Companies (“CMCs”) to properly investigate allegations of PPI mis-selling prior to the referral of a complaint to the FOS.

Clawback of executive pay
Pitmans LLP February 20 2012
Thanks to the recent revelation that five directors at Lloyds Banking Group, including the former Chief Executive, will be asked to return a combined total of more than £1 million in bonuses, the topic of bankers’ remuneration is well and truly back on the media agenda.

Treasury speaks on products and reform
SNR Denton February 17 2012
Mark Hoban, launching the simple products terms of reference spoke on the importance of simple products and of regulation.

OFT indicates possible bank competition investigation
Katten Muchin Rosenman LLP February 17 2012
On February 16, the Office of Fair Trading (OFT) published a speech by its Chief Executive, John Fingleton, addressing issues with respect to competition in the UK banking sector.

FSA publishes RDR guide
SNR Denton February 17 2012
FSA has published a guide to help firms assess whether they are on track to meet the requirements of the Retail Distribution Review.

Treasury publishes simple products ToR
SNR Denton February 17 2012
Treasury has published the terms of reference for a committee chaired by Carol Sergeant that is looking at how to devise a suite of simple financial products to help consumers to understand the markets.

Financial Services Bill published
Mills & Reeve LLP February 16 2012
The Financial Services Bill was published on January 27, and has put forward the Government's proposed new financial regulation regime for the UK.

Guidance on unfair contract terms
Dechert LLP February 16 2012
On 30 January 2012, the FSA published final guidance on the above (FG12/2) which provides a commentary on the types of contract term that the FSA commonly finds to be of concern under the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083).

The UK Financial Conduct Authority: how will the new supervisory regime affect investment firms?
Sidley Austin LLP February 16 2012
In June 2011, the UK Government published a White Paper and draft Bill (the “Financial Services Bill”) setting out its plans to replace the FSA with two new bodies – the Prudential Regulation Authority (“PRA”) and the Financial Conduct Authority (“FCA”).

Publication of Financial Services Bill 2010-12
Dechert LLP February 16 2012
On 27 January 2012, the text of the Financial Services Bill 2010-12, together with explanatory notes, was published.

Banking litigation highlights from 2011
Freshfields Bruckhaus Deringer LLP February 13 2012
In 2011, a number of banking and financial transaction disputes were considered by the courts in the UK.

FSA update - 13 February 2012
Clifford Chance LLP February 13 2012
As from 6 February, the rules relating to the FSA's executive settlement procedures under Chapter 5 of the FSA's Decision Procedure and Penalties Manual changed.

Current PPP developments in the United Kingdom
Bircham Dyson Bell February 8 2012
It’s difficult to determine whether we’ve reached the end of the PFI road in the UK or are simply about to embark on a new phase.

The UK Government's response to the Independent Commission on Banking
White & Case LLP February 6 2012
In our client alert of September 2011 (please click here for your copy), we discussed the Final Report of the Independent Commission on Banking (“ICB”).

Capital Markets

UK Government acts on executive remuneration
Blake Dawson February 20 2012
On 23 January, the UK Government announced new proposals to regulate excessive executive remuneration.

Treasury speaks on products and reform
SNR Denton February 17 2012
Mark Hoban, launching the simple products terms of reference spoke on the importance of simple products and of regulation.

Former corporate broking managing director fined £350,000 for inside information disclosure
Katten Muchin Rosenman LLP February 17 2012
On February 16, following on from the disciplinary actions against David Einhorn, Greenlight Capital, Alexander Ten-Holter and Caspar Agnew reported in the January 27, 2012 and February 3, 2012 editions of Corporate and Financial Weekly Digest, the UK Financial Services Authority (FSA) published a further final notice and announced that it had imposed a fine of £350,000 (approximately $550,000) on Andrew Osborne, a former Corporate Broking Managing Director of a major investment bank, for engaging in market abuse by improperly disclosing inside information ahead of a significant equity fundraising by Punch Taverns Plc (Punch) in June 2009.

The Einhorn/GreenLight insider dealing case – EU/US differences highlighted
Sidley Austin LLP February 17 2012
On 25 January 2012, the UK Financial Services Authority (the “FSA”) announced its decision to fine David Einhorn and his firm Greenlight Capital, Inc. (“Greenlight”) for insider dealing (together, the “Einhorn Decision”) a total of £7.2 million.

FSA publishes RDR guide
SNR Denton February 17 2012
FSA has published a guide to help firms assess whether they are on track to meet the requirements of the Retail Distribution Review.

IMA stresses CRA independence need
SNR Denton February 17 2012
IMA has written to the Treasury Select Committee inquiry into CRAs.

Treasury consults on auctioning regulation implementation
SNR Denton February 17 2012
Treasury is consulting on the financial regulatory aspects of the EU Auctioning Regulation relating to bidding for emissions allowances.

Counterparty credit risk management by CCPs
Dechert LLP February 16 2012
On 31 January 2012, the FSA published its final guidance on its review of counterparty credit risk management by central counterparties (FG12/3).

Manager and hedge fund fined £7.2 million for market abuse activity
Mills & Reeve LLP February 16 2012
Control of inside information is becoming increasingly important as the Financial Services Authority has, for the last few years, taken a harder line on those who misuse inside information.

Incentivising your employees in multiple jurisdictions - 5 key points
Eversheds LLP February 15 2012
Many industrial engineering companies have a global presence and most operate share based incentive programmes for employees based in the different jurisdictions in which they conduct business.

New tax transparent fund vehicle announced in the UK
Proskauer Rose LLP February 14 2012
The idea of a new UK tax transparent fund vehicle has been discussed for some time but HM Treasury has now released a consultation document and draft legislation addressing the issue.

Record fine for financial services fraud
Cobbetts LLP February 9 2012
Britain's financial regulator has imposed a record fine on a leading City financier, Ravi Sinha.

FSA market abuse action underlines market participants' responsibilities on inside information
Clifford Chance LLP February 9 2012
In the well-publicised action taken against Greenlight Capital Inc ("Greenlight") and its owner, US-based President and sole portfolio manager David Einhorn, the FSA has imposed fines totalling over £7 million following findings that he and the hedge fund engaged in market abuse contrary to section 118 Financial Services and Markets Act 2000 ("FSMA").

Commercial Property

Time waits for no man…(but it can on occasions be stretched where there is no prejudice!)
Brodies LLP February 17 2012
A recent Inner House decision may provide some comfort to planning authorities grappling with the new appeal requirements post planning reform.

UK Government re-affirms abolition of distress for rent
Hogan Lovells February 17 2012
The UK Government today launched a public consultation which has confirmed its intention to abolish distress for rent (recovery of arrears of rent by seizure of the tenant's goods) and replace it with a modern regime to recover commercial rent arrears.

Adequate and intelligible reasons
Brodies LLP February 17 2012
Many practitioners are not fans of the short decision letters used by Scottish Government reporters.

Making investments in UK real estate - a tax haven for non-UK residents?
Wragge & Co LLP February 16 2012
This analysis concerns investment in UK real estate by non-UK residents.

Are home buyers dragging prices down?
Morton Fraser February 16 2012
The residential property market is a prime example of the economic supply and demand curve.

Lock up your subletters
Penningtons Solicitors LLP February 15 2012
Social housing tenants who commit ‘tenancy fraud’ could face up to two years in jail and a £50,000 fine under proposals put out for consultation by Housing Minister Grant Shapps on 11 January.

The Non-Domestic Rates (Levying) (Scotland) Regulations 2012
Morton Fraser February 15 2012
Regulations making provision for the amount payable in certain circumstances as non-domestic rates for subjects in Scotland.

Can planning reform deliver greater housing supply?
Mills & Reeve LLP February 14 2012
The Institute for Public Policy Research has issued a series of analytical papers as part of a fundamental review of housing policy.

Surveyors' best practice
Fasken Martineau DuMoulin LLP February 14 2012
As property lawyers working in all areas of the commercial arena, we are well accustomed to the difficulties encountered by clients and their surveyors in the current economic climate.

Alternative investment seminar attracts large numbers
Morton Fraser February 14 2012
In a good week for Social Housing which saw a further £87 million being invested in affordable housing, a seminar on Alternative Investment Models heard how Aviva pension funds are being used south of the border to deliver social rented housing.

Where next for NHS estate? NHS Property Services Ltd
Mills & Reeve LLP February 13 2012
Since the publication of the Health and Social Care Bill, a key plank of which is the abolition of primary care trusts, those with an interest in the PCT estate have been ruminating over the question of the future of such estate.

Localism bill - clarity on the duty to cooperate
Mills & Reeve LLP February 13 2012
CLG has confirmed to 'Planning' that the duty to cooperate, found in s110 Localism Act, should not apply retrospectively.

Anti-social behaviour - five is the magic number
Blake Lapthorn February 13 2012
Theresa May announced on 30 January 2012 that the Government will set up pilot schemes this Summer forcing authorities to act if people in five separate households complain about anti-social behaviour from a particular neighbour.

Make yourself at home?
Manches LLP February 10 2012
Siobhan Jones recounts the rise (& fall) of the "protester squatter".

Applying commercial good sense, implying a term or just rewriting the contract?
Borden Ladner Gervais LLP February 9 2012
The application of commercial good sense to the interpretation of contracts seemed like a good idea in Rainy Sky SA v Kookmin Bank, [2011] UKSC 50.

Public liability: occupiers’ duty of care
Kennedys February 9 2012
Court of Appeal finds in favour of Claimant who slipped on a plastic icicle in Santa’s grotto; although the Defendant had a good system of inspection, the icicle was there to be seen.

Land Registry launch free initiative to prevent property fraud
Howes Percival LLP February 9 2012
Howes Percival is urging absent owners of properties to sign-up to the Land Registry’s latest initiative to combat property fraud.

National Planning Policy Framework (NPPF) update
Blake Lapthorn February 9 2012
Following Government consultation on the draft NPPF last year, a House of Commons Communities and Local Government Committee considered the proposals and responses and made a number of key recommendations in a report urging ministers to rewrite the new NPPF.

Will being green cost the earth?
Mills & Reeve LLP February 6 2012
The Energy Act 2011 will make it unlawful to rent out certain commercial and residential premises not meeting minimum energy efficiency standards, but introduces a framework to defer costs of green upgrades.

Scottish Government consults on plans to reform post-16 education
Brodies LLP February 2 2012
The future of Scotland's system of post-16 education is the subject of a recent Scottish Government consultation.

Rights of way over private roads – when permission becomes prescriptive
Howes Percival LLP January 30 2012
Are you a landowner?

Company & Commercial

February's conundrum - the future of the high street
Mills & Reeve LLP February 21 2012
Mary Portas and Grant Shapps have launched a competition to enable 12 towns to become "Portas Pilots" and share a £1 million pot to help struggling high streets.

Astrazeneca v IBM
Buddle Findlay February 20 2012
The recent UK case of AstraZeneca UK Limited v International Business Machines Corporation [2011] EWHC 306 (TCC) concerned a dispute relating to the exit provisions in a Master Services Agreement (MSA) for IT infrastructure services between IBM and AstraZeneca.

UK Government acts on executive remuneration
Blake Dawson February 20 2012
On 23 January, the UK Government announced new proposals to regulate excessive executive remuneration.

Red Tape Challenge - focus on corporate and commercial regulations
Mills & Reeve LLP February 16 2012
Company law is the current focus of the Government's Red Tape Challenge programme until 16 February.

Cable launches proposals to tackle executive pay
Mills & Reeve LLP February 16 2012
Following on from last year's discussion paper Vince Cable's statement to parliament sets out an approach to executive pay that is still largely voluntary.

New accounting rules for UK limited partnerships
Dechert LLP February 16 2012
Under the Partnership (Accounts) Regulations 2008, a limited partnership established under the law of any part of the United Kingdom must prepare and file accounts as if it were a company if each of its partners is either a limited company, an unlimited company, or a Scottish partnership each of whose members is a limited company (a “qualifying partner”).

UK Court of Appeal: fixed-share LLP member was not an employee
Dechert LLP February 15 2012
This DechertOnPoint reports on the Court of Appeal’s recent decision confirming that, on the particular facts of the case, a member of a fixed-share Limited Liability Partnership (LLP) was not an employee and was not therefore entitled to the statutory rights — such as to claim unfair dismissal — that attach to employee status.

There’s always one - the HSE’s targeting of senior managers and directors
Eversheds LLP February 15 2012
Directors and senior managers at all organisations should know the importance of taking health and safety seriously, both for themselves and for their organisation.

Common pitfalls in cross-border contracts: how to avoid them and how to react when disputes arise
Eversheds LLP February 15 2012
Cross-border transactions involve different legal risks, and the potential for disputes in foreign jurisdictions is considerable.

High Court of England and Wales rules emissions allowances to be treated as property
McDermott Will & Emery February 13 2012
Following a decision of the High Court of England and Wales in Armstrong DLW GmbH v Winnington Network Ltd [2012] EWHC 10 (Ch) the legal status of European Union Allowances (EUAs) traded under the EU Emissions Trading Scheme (EU ETS), has now been clarified, with the Court holding that EUAs should be classed as intangible property under English law.

Health and safety law meets proceeds of crime?
Brodies LLP February 10 2012
At the moment, if a company is successfully prosecuted for a breach of health and safety legislation, it will be fined.

Competition

OFT closes Article 102 investigation into NHS supplier
Mayer Brown LLP February 14 2012
On 9 February 2012, the OFT announced that it had closed its abuse of dominance investigation in relation to equipment supplied to the NHS.

OFT consults on undertakings in relation to extended warranties for domestic electrical goods
Mayer Brown LLP February 14 2012
On 7 February 2012, the OFT began its consultation on a package of measures aimed at improving competition in the extended warranties market.

OFT launches call for evidence on markets in remote communities across the UK
Mayer Brown LLP February 14 2012
On 10 February 2012, the Office of Fair Trading (“OFT”) launching a fact-finding review to understand more about the challenges facing consumers and businesses in remote communities across the UK.

Court of Appeal permits interclass to appeal against CAT decision on penalties
Mayer Brown LLP February 14 2012
On 8 February 2012, the Court of Appeal published an order allowing Interclass to appeal against the revised penalty imposed on it by the Competition Appeal Tribunal (“CAT”).

Team moves and use of springboard relief
CMS Cameron McKenna February 13 2012
The recent High Court case of QBE Management Services (UK) Ltd v Dymoke and Others provides a useful reminder of the legal issues relevant to team moves.

What can you do when employees join, or become, competitors?
Blake Lapthorn February 6 2012
An employee is subject to the duty of fidelity, including the duty not to compete with his or her employer whilst the employment continues.

Construction

Beware of implied terms – duty of care
Mills & Reeve LLP February 15 2012
For professionals thinking of providing services without a full set of terms and conditions this is a warning of what might happen…

A reminder of what you have to do now the amended Construction Act is in force...
Penningtons Solicitors LLP February 15 2012
As many of you will be aware, various amendments to the Housing Grants Construction and Regeneration Act 1996 came into force in England on 1 October 2011 under the Local Democracy, Economic Development and Construction Act 2009.

Defects liability in construction projects: understanding the contractor's liability
Herbert Smith LLP January 31 2012
It is an implied contractual term under English law that construction contractors are required to deliver works that meet the description and standard under the construction contract.

Copyrights

Feasibility study on Digital Copyright Exchange
Baker & McKenzie February 16 2012
On 22 November 2011, the UK Government Business Secretary announced the launch of a feasibility report into the creation of a Digital Copyright Exchange, following a recommendation in the Hargreaves report, "Digital Opportunity: A Review of Intellectual Property and Growth".

Premier League football: showings of foreign broadcasts in UK pubs. The High Court decides.
Reed Smith LLP February 10 2012
On 3 February 2012, the English High Court (Kitchin LJ) handed down its judgment in the case of Football Association Premier League Ltd and Others v QC Leisure and Others [2012] EWHC 108 (Ch).

Corporate Finance/M&A

Warranty & indemnity insurance - taking the long-tail risk out of a transaction?
Mills & Reeve LLP February 15 2012
When it comes to agreeing the terms of a sale and purchase agreement for the sale of shares or assets, the parties can often find themselves at loggerheads in agreeing the scope of warranties and indemnities - differing expectations and lack of appetite for risk can sometimes result in deals failing to proceed.

Corporate Immigration

Changes to Tier 1 application requirements
Kingsley Napley February 16 2012
On 13 February, the UKBA made changes to the guidance for all Tier 1 categories to include a paragraph which clarifies the circumstances when the UKBA will contact applicants about missing, or incorrect documents.

Does it matter who I associate with?
Morton Fraser February 16 2012
There is a well-known saying that we can choose our friends, but cannot choose our family.

Increase in maintenance requirements
Kingsley Napley February 16 2012
From April 2012, the maintenance requirements for the following applications will increase as follows:.

Changes to the visa process for UK graduate migrants
Kingsley Napley February 16 2012
As the Tier 1 Post Study visa route is set to be removed from 6 April, the UK Border Agency (UKBA) has published details of new provisions under Tier 2 (General) for graduates who would previously have been eligible under the Tier 1 Post Study category.

Student immigration: further changes to Tier 4 afoot
Mills & Reeve LLP February 15 2012
The Home Office has published this week a formal Statement of Intent on proposed changes affecting study, post-study work and maintenance requirements for international students and workers.

New rules for students will welcome the most talented, says Immigration Minister
Penningtons Solicitors LLP February 14 2012
New rules to cut abuse in the student immigration system and ensure only the most talented students can remain in the UK for employment will come into force within weeks.

Immigration Minister proposes new visa fees
Penningtons Solicitors LLP February 13 2012
Immigration Minister Damian Green has proposed an increase in visa fees in addition to an increase in application fees for UK-based visas.

New guidance on sharing data on overseas visitors’ debts with the UKBA
Mills & Reeve LLP February 13 2012
The DH has issued new guidance to NHS trusts on sharing information about debts which overseas visitors owe for NHS treatment.

Corporate Tax

A tale of woe: temps and expense but it’s no sacrifice
Squire Sanders February 21 2012
The recent case of Reed Employment Plc & Others v HMRC is another salutary reminder to employers to ensure that their salary sacrifice arrangements are properly implemented.

When can SARS issue a “jeopardy assessment”?
DLA Cliffe Dekker Hofmeyr February 17 2012
The Tax Administration Bill (TAB) will soon be signed into law as the Tax Administration Act (TAA).

Nature of a premium in addition to a purchase price
DLA Cliffe Dekker Hofmeyr February 17 2012
An interesting judgement was handed down in the United Kingdom’s (UK) First-tier Tribunal (Tax Chamber) recently in the case of Bluesparkle Limited v The Commissioner for Her Majesty’s Revenue and Customs [2012] UKFTT 45 (TC).

Making investments in UK real estate - a tax haven for non-UK residents?
Wragge & Co LLP February 16 2012
This analysis concerns investment in UK real estate by non-UK residents.

Unknown associates
RPC February 13 2012
How much evidence do you need to substantiate a claim for tax relief?

UK Tax Tribunal highlights risks of improperly implemented salary sacrifice schemes
Dechert LLP February 10 2012
In the recent case of Reed Employment, the First-tier Tax Tribunal found the Reed group of companies liable for £158 million of tax and national insurance following a failed salary sacrifice arrangement.

Securing a tax deduction for the costs of defending a criminal prosecution
Herbert Smith LLP February 10 2012
The costs of defending a criminal prosecution are capable of being deducted in computing profits of a trade following the House of Lords decision in McKnight v Sheppard but a recent First Tier Tribunal decision in Mr A Raynor (deceased) and Mrs B C Raynor and The Commissioners for Her Majesty's Revenue and Customs (Income Tax) has departed from that decision, by making a contrary determination of the facts.

HMRC's new procedure for investigating suspected serious tax fraud
Herbert Smith LLP February 8 2012
HMRC's "tougher procedures" for "civil" fraud investigations came into force on 31 January 2012.

Derivatives

Employee Benefits & Pensions

Indexation: lawful index switch and potential scrapping
Mayer Brown LLP February 17 2012
Following a challenge brought by a number of unions, the High Court ruled in December 2011 that the Government had acted lawfully in deciding to increase public sector pensions in line with the Consumer Prices Index (“CPI”) rather than the Retail Prices Index (“RPI”).

Section 251 Pensions Act 2004
Mayer Brown LLP February 17 2012
In the run-up to 6 April 2011, section 251 created a concern that, unless certain trustee resolutions were passed before that date, schemes might lose all powers to make payments to an employer.

Tests-Achats – one year on
Mayer Brown LLP February 17 2012
It has been almost a year since the Tests-Achats ruling was made by the European Court of Justice (“ECJ”).

6 April 2012 – don’t forget...
Mayer Brown LLP February 17 2012
From 6 April 2012 the concept of “protected rights” will be abolished with protected rights potentially becoming ordinary scheme benefits.

Short service refunds and dealing with small pension pots
Mayer Brown LLP February 17 2012
The implementation of auto-enrolment is expected to prompt an increase in the number of small DC pots.

GMP equalisation consultation
Mayer Brown LLP February 17 2012
The Government has published a consultation which arguably confirms that schemes are required to equalise guaranteed minimum pensions (“GMPs”) and suggests a possible equalisation methodology.

Automatic enrolment - what should employers be doing?
Mayer Brown LLP February 17 2012
This note sets out some practical steps that employers can take now in anticipation of the introduction of automatic enrolment.

Cracks show for the Wedgwood Museum: no special charities protection from 'last man standing' pension shortfalls
MacRoberts LLP February 17 2012
The UK government this week indicated that charities are not to be given special exemptions from the employer debt provisions of the Pensions Act 1995.

Finalised amendments to the Employer Debt Regulations
Mayer Brown LLP February 17 2012
New regulations, which are now in force, introduce an alternative mechanism to restructure and defer statutory debts which would otherwise become due when an employer in a multi-employer scheme ceases to employ active members.

Pensions speedbrief - GMP equalisation: details of government consultation
Eversheds LLP February 15 2012
Complexity and uncertainty have meant that, in practice, the majority of affected pension schemes have not equalised guaranteed minimum pensions (“GMPs”).

A round-up of pensions developments
Herbert Smith LLP February 3 2012
An ancient Mexican tribe, the Mayans, may have predicted that the world would end in 2012 but for government departments, it is business as usual.

Employment & Labor

Compromise agreements - Equality Act issue to be resolved
Morton Fraser February 20 2012
Although it only entered into force in 2010, the Equality Act has already been subject to criticism over the drafting of one of its provisions, section 147, which relates to compromise agreements.

When can an employee working abroad bring an employment tribunal claim in the UK?
Manches LLP February 20 2012
In the recent case of Ravat v Halliburton Manufacturing and Services Ltd, the Supreme Court held that an employee who was employed by a German company, and who was working in Libya at the time of his dismissal, was entitled to bring an unfair dismissal claim in Great Britain.

Stupid reasons for dismissal
Squire Sanders February 20 2012
Making a number of appearances in the press recently is the sad story of a trainee at US law firm Shearman & Sterling.

UK Government acts on executive remuneration
Blake Dawson February 20 2012
On 23 January, the UK Government announced new proposals to regulate excessive executive remuneration.

New PPF levy framework
Mayer Brown LLP February 17 2012
In December 2011, the Pension Protection Fund (“PPF”) published the 2012/13 Levy Determination, which set out a new levy calculation framework for 2012/13.

Remarks relating to employee’s age amounted to discrimination
Morton Fraser February 17 2012
In the recent case of James v Gina Shoes Ltd and others UKEAT/0384/11 the EAT has given consideration to the issue of whether negative remarks which were made by a managing director to an employee regarding his age gave rise to a ‘prima facie’ case of discrimination.

Chief executive of Ann Summers gets privacy injunction
RPC February 17 2012
Mr Justice Tugendhat has today handed down a short judgment explaining why he made an interlocutory order to prevent the publication of private and confidential information about Jacqueline Gold, the high-profile Chief Executive of Ann Summers.

Springing into action
Orrick Herrington & Sutcliffe LLP February 17 2012
As bonus time looms for many employers, and especially those in the Square Mile, employees start casting around for alternative options in case their variable remuneration doesn't meet their expectations - or living costs.

Cyberbullying – a time to take note
Pitmans LLP February 16 2012
Thanks to the media and public figures speaking out the awareness of cyberbullying is ever increasing.

When can employees working abroad bring claims for unfair dismissal in Great Britain?
Dechert LLP February 16 2012
In the recent case of Ravat v Halliburton Manufacturing and Services Ltd the Supreme Court confirmed that whether an employee is entitled to the right not to be unfairly dismissed depends on whether Great Britain is the place with which, in comparison with any other, their employment has the closer connection.

Former Woolworths employees miss out on compensation
Manches LLP February 16 2012
Staff that were made redundant from around 200 of Woolworths’ stores missed out on compensation payments for Woolworths’ failure to comply with its statutory duty to collectively consult when making redundancies.

Woolworths' administrators fall short on consultation requirements
Mills & Reeve LLP February 16 2012
An employment tribunal has decided that the administrators failed in their duties to consult staff about redundancies when presiding over the closure of the Woolworths chain of stores in late 2008.

Collective redundancy threshold: challenge to meaning of 'establishment'?
Herbert Smith LLP February 15 2012
A recent decision could form the basis of an appeal challenging the concept of 'establishment' for the purposes of the collective redundancy threshold.

The perils of harmonising terms and condition of employment following a TUPE transfer
Pillsbury Winthrop Shaw Pittman LLP February 15 2012
Enterprises that undertake serial M&A or outsourcing activity can find themselves with a diverse workforce with differences in pay and other terms and conditions of employment applying to different categories of employees across the business.

Sentencing
Morton Fraser February 15 2012
In the recent case of Scottish Sea Farms Ltd and Logan Inglis Ltd v Her Majesty’s Advocate, two companies appealed to the High Court of Justiciary seeking to have fines (imposed as a result of health & safety breaches) reduced.

Presenteeism presents itself as a problem
Eversheds LLP February 15 2012
A recent survey by Nuffield Health has found that more people are now inclined to go to work sick.

Bumping: how far must employers go to avoid a finding of unfair dismissal?
Morton Fraser February 15 2012
This article considers the case law relating to “bumping” and provides practical suggestions for employers.

Manufacturing a way out of the crisis
Eversheds LLP February 15 2012
Following the call on Monday 30 January 2012 by Mike Turner, Chairman of Babcock and one of the country’s most senior industrialists, to the UK government to revitalise the production sector and engineer a lasting recovery from the financial crisis, law firm Eversheds suggest that the government need to also take a sensible and pragmatic view of risk to help manufacturing industry recover.

Application of UK employment law to employees working outside the UK
DMH Stallard LLP February 14 2012
The Supreme Court has held that an employee who carried out all his work outside the UK could nevertheless bring a claim of unfair dismissal in a UK employment tribunal because his employment had a “substantial connection” to the UK (Ravat v Halliburton Manufacturing and Services Limited [2012] UKSC 1).

Government clarifies changes to unfair dismissal qualifying period
Kingsley Napley February 14 2012
The Government has published its draft legislation for increasing the amount of time that an employee will have to have been continuously employee before bringing an unfair dismissal claim to two years.

Cheapness criterion in voluntary severance scheme lawful despite adverse impact on older workers
Mills & Reeve LLP February 14 2012
The Employment Appeal Tribunal has ruled that weeding out the most expensive applicants for an over-subscribed voluntary severance scheme was lawful despite its disproportionate impact on employees in the 50-54 age bracket.

Employees cannot claim damages for breach of contract when contractual disciplinary procedures are not followed
Mills & Reeve LLP February 13 2012
In Edwards v Chesterfield Royal Hospital NHS FT and Botham v Ministry of Defence, the Supreme Court considered two joint appeals concerning whether an employee can claim damages for breach of contract where a contractual disciplinary procedure has been (or is alleged to have been) breached.

Reasonable adjustments: provision, criterion or practice need not apply to claimant
Shepherd & Wedderburn LLP February 13 2012
The Employment Appeal Tribunal (EAT) has considered, in the case of Roberts v North West Ambulance Service, whether a disabled employee could be placed at a substantial disadvantage by an employer’s provision, criterion or practice (PCP), when the employee was not required to comply with that PCP.

Redundancy and suitable alternative employment
Shepherd & Wedderburn LLP February 13 2012
The Employment Appeal Tribunal (EAT) has recently confirmed that an employee can act reasonably in refusing suitable alternative employment, when the Tribunal’s finding was that a reasonable employee would have accepted the offer.

Foreign policy: overseas employee with a strong UK connection can claim unfair dismissal
Hogan Lovells February 13 2012
Employees can generally make unfair dismissal claims in the UK only if they are working in Great Britain at the date of dismissal.

Employer liable for violent employee
Shepherd & Wedderburn LLP February 13 2012
In the recent cases of Weddall v Barchester Healthcare Limited and Wallbank v Wallbank Fox Designs Limited, the Court of Appeal had to consider whether two employers were vicariously liable for assaults which happened at the workplace.

Service provision changes under TUPE
Manches LLP February 13 2012
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) saw an extension of the previous TUPE regulations (the 1981 Regulations) to include service provision changes within their ambit.

Diving in - springboard injunctions and team moves
Hogan Lovells February 13 2012
Employers can apply to court for a "springboard" injunction to prevent employees from taking advantage of breaches of confidentiality duties, typically in team move cases.

By mutual consent - employee allowed to withdraw resignation
Hogan Lovells February 13 2012
In considering whether the claimant had brought her unfair dismissal claim in time, the EAT in Chelmsford College Corporation v Teal decided that a unilateral resignation had been withdrawn with the consent of the employer and the employment continued until a further unilateral resignation was accepted by the employer.

Job advertisement that requires paid work experience as a pre-requisite to employment indirectly discriminates against women
Mills & Reeve LLP February 13 2012
In the case of Crilly v Ballymagroarty Hazelbank Community Partnership, an Industrial Tribunal in Northern Ireland found that an essential requirement in a job advertisement indirectly discriminated against women.

Court decides that in a redundancy situation what amounts to suitable alternative employment is subjective
Mills & Reeve LLP February 13 2012
In a potential redundancy situation where the employer has made a suitable offer of alternative employment and a reasonable employee would accept this, an employee cannot reasonably turn down the offer, right?

TUPE does not apply where there are fundamental changes in activities
Bircham Dyson Bell February 10 2012
In Enterprise Management Services Ltd v Connect-Up Ltd & Others, the EAT confirmed that there was no service provision change for the purposes of TUPE where the activities of an outgoing contractor (Enterprise) were not fundamentally the same as those of the incoming contractor (Connect), and where there was subsequently a ‘fragmentation’ of activities.

Consultation on tribunal fees published
Bircham Dyson Bell February 10 2012
The Government is seeking views on two different options for charging fees in the employment tribunal.

Employment tribunal was wrong to substitue its own view on dismissal
Bircham Dyson Bell February 10 2012
In DB Schenker Rail (UK) Ltd v Doolan, the Scottish EAT held that an employment tribunal wrongly decided that the employer was not entitled to conclude, on the basis of expert evidence, that an employee was unfit to return to work.

Unknown purchaser liable for TUPE related dismissal
Bircham Dyson Bell February 10 2012
Regulation 7 of TUPE states that a dismissal will be automatically unfair if the main reason for dismissal is the transfer itself, or a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce (‘ETO reason’).

Contributory negligence defence not applicable to intentional tort claim, says English Court of Appeal
Borden Ladner Gervais LLP February 9 2012
A supermarket scuffle has led the English Court of Appeal to reject the argument that the plaintiff’s contributory negligence could serve as a defence to a claim for assault and battery: Pritchard v Co-operative Group (GWS) Ltd, [2011] EWCA Civ 329.

International commuter can claim under UK law – and so can many others
Wragge & Co LLP February 9 2012
In Ravat v Halliburton Manufacturing and Services Ltd, the Supreme Court ruled that an employee can claim unfair dismissal despite working wholly in Libya on a 28 day on, 28 day off basis.

2011 employment law review
Dechert LLP February 9 2012
The maximum compensation that the Employment Tribunal can award for unfair dismissal (save in exceptional cases) and the basis upon which statutory redundancy payments are calculated will increase from 1 February 2012

Vicarious liability: an ever expanding doctrine?
Kennedys February 9 2012
Following the Court of Appeal’s decisions on employers’ liability for assaults by employees in Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Designs Ltd [24.01.12], we review the law on vicarious liability.

Employment law – changes afoot
Howes Percival LLP February 8 2012
2011 saw some dramatic announcements from the Coalition Government in relation to changes to the law that governs employment relations.

When bad weather hits
Howes Percival LLP February 6 2012
Our company has been hard hit by the failure of staff to get into work because of the recent bad weather and difficult travel conditions.

£4.5 million award for campaign of discrimination following pregnancy
Blake Lapthorn February 6 2012
Whilst the average award for discrimination claims is not as high as one might think (around £15,000 in 2010/2011) there are occasionally cases where the award is much higher.

Drop in multiple cases reveals little change in employment tribunal claims
Blake Lapthorn February 6 2012
The statistics published by HM Courts and Tribunals Service show a dramatic fall in the number of claims received between July and September 2011, compared to those received in the same quarter in 2010.

Employee claims constructive dismissal over LinkedIn profile
Blake Lapthorn February 6 2012
The Employment Tribunal case of John Flexman, who is claiming constructive unfair dismissal in connection with a dispute about his profile on the professional networking site LinkedIn, could not have come at a more interesting time for our Employment team.

Round-up of employment law developments
Herbert Smith LLP February 3 2012
The Department for Business, Innovation and Skills (BIS) has informally stated that the planned increase in the qualifying period for unfair dismissal from one to two years will only apply to those starting employment on or after 6 April 2012, according to Practical Law Company.

All change for employment tribunals?
Bircham Dyson Bell January 12 2012
Vince Cable, the Business Secretary, has recently announced the Government's plans to significantly reform UK employment law.

Energy & Natural Resources

Does it fit? UK government consults on "improvements" to the Feed in Tariff scheme
Reed Smith LLP February 17 2012
If you're involved in energy generation in the UK (e.g., energy companies, investors, financiers, or suppliers of fuels, plant or infrastructure), take notice: earlier this month, the UK government published its second consultation on the Feed in Tariff regime for solar PV installations, and it proposes further cuts to the subsidy provided for solar power.

SFO obtains convictions in private sector oil and gas corruption case
Morrison & Foerster LLP February 16 2012
The UK Serious Fraud Office has recently obtained convictions against four individuals who received corrupt payments in return for the disclosure of confidential procurement information relating to the award of £66 million offshore oil and gas engineering contracts in Iran, Egypt, Russia, Singapore and Abu Dhabi.

Does it FiT? government consults on "improvements" to the Feed in Tariff scheme
Reed Smith LLP February 16 2012
On 9 February 2012, the British Government published a further consultation on their review of the Feed in Tariff (FiT) scheme for subsidising low-carbon energy generation.

IPC goes for experience for Hinkley Point and other project news
Bircham Dyson Bell February 14 2012
The application for the proposed Hinkley Point C nuclear power station in Somerset is progressing.

Small-scale FiTs: DECC draws the battle-lines
Herbert Smith LLP February 14 2012
The Department of Energy and Climate Change (DECC) has published a response to its controversial consultation launched in October 2011 on alterations to the feed-in tariff (FiT) regime for solar PV installations with a generation capacity of less than 250 kW.

Ofgem consumer survey shows consumers want simpler and clearer information from energy companies
Mayer Brown LLP February 14 2012
On 6 February 2012, the Office of Gas and Electricity Markets (“Ofgem”) announced that a consumer survey conducted by the energy regulator supported it’s proposals for simpler and clearer information from energy companies.

Further changes to the feed-in tariffs scheme
CMS Cameron McKenna February 13 2012
On 9th February 2011, the Government published its response to the first phase of the comprehensive tariff review of the Feed-in Tariffs (“FITs”) scheme and two further consultations on further changes to the FITs.

320: waste water NPS finalised as Thames Tunnel consultation ends
Bircham Dyson Bell February 9 2012
Today's entry reports on the publication of a revised Waste Water National Policy Statement, and the end of consultation on the Thames Tunnel.

Wind farm noise case thwarted
Blake Lapthorn February 9 2012
A potential landmark case for noise nuisance generated by onshore wind farm development has been avoided by an out-of-court settlement.

EMR Technical Update
Shepherd & Wedderburn LLP January 19 2012
The Department of Energy and Climate Change (DECC) has recently published a Technical Update Paper elaborating on its proposals for Energy Market Reform (EMR).

Environment

Statutory guidance for the contaminated land regime has a make over
CMS Cameron McKenna February 14 2012
On 7 February 2012 draft revised statutory guidance, which accompanies the contaminated land regime in England and Wales (Part 2A of the Environmental Protection Act 1990), was laid before Parliament with associated regulations.

Natural England's new enforcement sanctions
Blake Lapthorn February 9 2012
From 3 January 2012 Natural England has been able to use civil enforcement sanctions.

Campaign for the Protection of Rural England (CPRE) NPPF report
Blake Lapthorn February 9 2012
In a further development the CPRE published a report highlighting another omission from the NPPF; the failure to recognise the intrinsic value of the countryside outside of National Parks, Areas of Outstanding Natural Beauty and Green Belts.

General Practice

Personal injury: cost cutting - a factor in fatal road accident?
Kingsley Napley February 20 2012
The BBC recently reported on the sad case of a 19 year old UK serviceman, home on leave, who was killed after being struck by a car on an unlit road in the early hours of Christmas Day.

Notice of intended prosecution – you are advised to take advice
Brodies LLP February 19 2012
Former UK cabinet minister Chris Huhne and his ex-wife Vicky Pryce both appeared in court last week to face charges of attempting to pervert the course of justice.

Marley v Rawlings: a further case on the proper execution of wills
Wedlake Bell February 15 2012
We recently wrote about the case of Martin Lavin whose hand was apparently 'guided' into signing his Will by his sister, Anne.

A limit on reasonable adjustments to examinations?
Mills & Reeve LLP February 14 2012
The Court of Appeal has ruled on a case involving reasonable adjustments in examinations leading to qualification as a solicitor (the Legal Practice Course - LPC).

Damages for PSLA: multiple injuries
Kennedys February 9 2012
Court of Appeal increases award for pain, suffering and loss of amenity (PSLA) by 25%; approach at first instance had been incorrect.

Much needed reform to inheritance laws may be imminent - but will it go far enough for unmarried couples?
Howes Percival LLP January 30 2012
The Law Commission has completed its review of our inheritance laws and made some proposals that could significantly improve the situation for the family members and loved ones of a person who has died without making a will.

Healthcare

Government to seek public view on changing law on prevention of genetic disease
RPC February 20 2012
A public discussion will be launched later this year by the Human Fertilisation and Embryology Authority to gauge public opinion on whether a new scientific procedure should be introduced.

Guidance on CPR 36.10(5)
RPC February 20 2012
In Lumb v Hampsey [2011] the court considered how it should exercise its discretion under CPR 36.10(5) when assessing the costs consequences of late acceptance of a Part 36 offer.

A right to treatment?
RPC February 20 2012
On 20 December 2011 the National Health Service (Right to Treatment) Bill proposed by Hugh Bayley MP was given its first reading in the House of Commons.

Supreme Court imposes obligation on NHS trust to protect those at risk of suicide
RPC February 20 2012
The Supreme Court has found that Article 2 of the European Convention on Human Rights does impose an operational obligation on states to protect mentally ill patients who are not detained under the Mental Health Act 1983, where they are at a real and immediate risk of suicide.

Requirement for determination on key issues in dispute
RPC February 20 2012
In the General Dental Council v Rimmer [2011] EWHC 3438 (Admin) the General Dental Council Professional Conduct Committee’s fi nding of misconduct was quashed because the Committee did not indicate a clear determination as to the expert evidence which they preferred.

Medical negligence: hospital patients 16% more likely to die at the weekend
Kingsley Napley February 20 2012
A recent study in the Journal of the Royal Society of Medicine reveals that patients admitted to hospital on Sundays are 16% more likely to die than patients admitted mid-week.

Presenteeism presents itself as a problem
Eversheds LLP February 15 2012
A recent survey by Nuffield Health has found that more people are now inclined to go to work sick.

Locked doors and a requirement of supervision are not in themselves a deprivation of liberty
Mills & Reeve LLP February 13 2012
This was the conclusion reached by the Court of Protection in the case of C v (1) Blackburn with Darwen Borough Council; (2) A Care Home; (3) Blackburn with Darwen Teaching Care Trust.

Consultation on the regulations for HealthWatch England membership
Mills & Reeve LLP February 13 2012
This consultation aims to give stakeholders and the public the chance to contribute to the development of the membership regulations for HealthWatch England.

GMC to consult on assisted suicide
Mills & Reeve LLP February 13 2012
The GMC is developing guidance for their examiners to help them decide what action to take if a doctor is alleged to have assisted in a suicide.

Court quashes decision to disclose the nature of practitioner’s health problems during hearing of application for voluntary erasure
Mills & Reeve LLP February 13 2012
The Medical Act 1983 and relevant regulations provide that if a practitioner applies in writing for his name to be removed from the register, the registrar may refuse to do so if there is an allegation that his fitness to practise is impaired.

The new Chief Coroner
Mills & Reeve LLP February 13 2012
Seasoned followers of matters coronial will remember that the post of Chief Coroner was created by the Coroners Act 2009.

NHS Facebook misuses to be resolved a local level
Mills & Reeve LLP February 13 2012
Recent Nursing and Midwifery Council guidance issued by the Assistant Director of Public and Professional Communications (Andy Jaeger), encourages NHS managers to actively respond to issues around how their staff use social media.

A cautionary tale of using patient case studies in lectures!
Mills & Reeve LLP February 13 2012
A dental expert was recently accused of breaching confidentiality by using a case study within one of his lectures.

Compromise Agreements and the Public Interest Disclosure Act 1998
Mills & Reeve LLP February 13 2012
The existing legal right for staff to raise concerns about safety, malpractice or other wrong doing without suffering any detriment is to be highlighted in the NHS Constitution.

Update: an end to inflated prices for pharmaceutical “specials”?
Mills & Reeve LLP February 13 2012
Further to our article in October, regarding the “specials” tariff, which was due to be published in November 2011, we are now pleased to be able to announce that this long-awaited tariff (PartVIIIB) has now been released.

Helping people live healthier lives: the future for public health
Mills & Reeve LLP February 13 2012
On 23 January 2012, the Government made further announcements on its ambitions for a new public health system.

The fourth year of the IMCA service: NHS continuing healthcare
Mills & Reeve LLP February 13 2012
Readers will be aware that the Mental Capacity Act 2005 created the Independent Mental Capacity Advocate service to safeguard people without the capacity to make certain key decisions about their health or social care and without family or friends to act on their behalf.

Analysis of the consultation on allocation for distribution of additional funding to local authorities for dealing with DOLS in hospitals
Mills & Reeve LLP February 13 2012
Last year the DH consulted stakeholders, including local authorities and the NHS, regarding the options for distributing additional funds to local authorities in relation to certain additional functions that they are due to take on, subject to the passage of the Health and Social Care Bill through Parliament.

Subject to safeguards, the General Dental Council (GDC) can use patient records without consent, and without a court order
Mills & Reeve LLP February 13 2012
In the matter of the General Dental Council v Savery & Ors, the GDC sought a declaration that it may disclose internally confidential clinical records (already in their possession) of 14 patients, without their consent.

National Information Governance board (NIGB) issues latest guidance on information governance
Mills & Reeve LLP February 13 2012
In the wake of the organisational changes introduced by the Health and Social Care Bill, Information Governance for Transition provides the latest NIGB guidance on data handling.

Case confirms interaction between the Mental Health Act and the Court of Protection
Mills & Reeve LLP February 13 2012
The recent Court of Appeal judgment in C v (1) Blackburn with Darwen Borough Council; (2) A Care Home; (3) Blackburn with Darwen Teaching Care Trust confirms the position regarding the interaction between the Mental Health Act 1983 (MHA) and the jurisdiction of the Court of Protection.

Building the NHS Trust Development Authority
Mills & Reeve LLP February 13 2012
The recently published Building the NHS Trust Development Authority sets out how the authority will provide governance and support for trusts moving towards foundation status by April 2014.

Human Fertilisation and Embryology Authority to seek public views on mitochondrial manipulation to prevent the transmission of inherited disease
Mills & Reeve LLP February 13 2012
The Secretary of State for Health and the Secretary of State for Business, Innovation and Skills have asked the Human Fertilisation and Embryology Authority to lead a public consultation on the question of whether the law should be changed to allow current research techniques, for the prevention of the transmission of mitochondrial disease from mother to child, to be made available in fertility clinics.

NCAS has a temporary home
Mills & Reeve LLP February 13 2012
For an interim period of one year from April 2012 to 31 March 2013, the National Clinical Assessment Service will be hosted by the National Institute for Health and Clinical Excellence.

Private email account is no hiding place for official emails
Mills & Reeve LLP February 13 2012
The Information Commissioner has recently issued guidance setting out his view that the Freedom of Information Act 2000 "applies to official information held in private email accounts (and other media formats) when held on behalf of the public authority".

NHS future forum publishes second set of reports
Mills & Reeve LLP February 13 2012
On 10 January, the NHS Future Forum published its second set of reports to Health Secretary Andrew Lansley, which cover integration, education and training, information and the role of the NHS in public health.

Court rejects nurse’s appeal against suspension
Mills & Reeve LLP February 13 2012
R (on the application of Marcus) v NMC concerned allegations relating to a single clinical incident against a registered nurse who was alleged to have failed to provide appropriate assistance to a doctor looking after a premature baby.

Biggest ever fine in pipeline for NHS after data security breach
Mills & Reeve LLP February 13 2012
A nasty surprise (it is reported) has just popped through the letterbox at Sussex University Hospitals NHS Trust.

Court upholds trust’s refusal to investigate a complaint which required access to patient’s records without their consent
Mills & Reeve LLP February 13 2012
This was the decision of the court in R (on the application of TA) v North East London NHS.

Fourth Annual Report of the Independent Mental Capacity Advocacy (IMCA) service: mental health
Mills & Reeve LLP February 13 2012
As reported elsewhere in this update, the IMCA service created by the Mental Capacity Act 2005 to safeguard people who lack capacity to make certain decisions, commenced on 1 April 2007 and in December 2011 the fourth annual report was published.

Design of the NHS Commissioning Board
Mills & Reeve LLP February 13 2012
The NHS Commissioning Board released various documents, ahead of its second board meeting which was held on Thursday 2 February.

The NHS duty to prevent suicide - the decision of the Supreme Court to extend the duty to informal patients
Mills & Reeve LLP February 10 2012
In an extension of human rights law, the Supreme Court has made it clear that all psychiatric patients admitted into a mental health unit and at risk of suicide should be given the same level of protection irrespective of their status under the Mental Health Act.

Use of unlicensed medicines – legal and ethical issues
Bircham Dyson Bell January 11 2012
In the current climate of austerity, healthcare providers may be seeking ways to contain costs of treatment.

Information Technology

BBC prevail in Supreme Court FOI case
Brodies LLP February 17 2012
This week the Supreme Court unanimously dismissed an appeal from the Court of Appeal in the case of Sugar v BBC.

Cyberbullying – a time to take note
Pitmans LLP February 16 2012
Thanks to the media and public figures speaking out the awareness of cyberbullying is ever increasing.

Outsourcing - 2012 shaping the “new normal”
Mills & Reeve LLP February 15 2012
2012 looks set to remain a turbulent time with economic issues including the euro zone crisis still hampering recovery.

Cabinet Minister’s 17-year-old son gets privacy injunction but not anonymity
RPC February 15 2012
The son of Caroline Spelman, the Environment Secretary, has obtained an injunction against the publishers of the Daily Star Sunday.

Orders for inspection by IT experts: a new tool for the claimant's toolbox
RPC February 14 2012
In the recent High Court case of Patel v Unite the court granted an order for an independent IT expert to inspect the respondent's computer systems after the respondent failed to comply fully with a Norwich Pharmacal order.

Insolvency & Restructuring

Chasing debts in an insolvency - throwing good money after bad?
Mills & Reeve LLP February 15 2012
As the economic clouds continue to darken and the threat of a double-dip recession increases, concern about exposure to unsecured bad debts will inevitably dominate the agenda of many companies.

Insurance & Reinsurance

Treasury speaks on products and reform
SNR Denton February 17 2012
Mark Hoban, launching the simple products terms of reference spoke on the importance of simple products and of regulation.

Tests-Achats – one year on
Mayer Brown LLP February 17 2012
It has been almost a year since the Tests-Achats ruling was made by the European Court of Justice (“ECJ”).

FSA publishes RDR guide
SNR Denton February 17 2012
FSA has published a guide to help firms assess whether they are on track to meet the requirements of the Retail Distribution Review.

What's really driving the rising cost of car insurance?
Edwards Wildman Palmer LLP February 15 2012
Motor insurers are being heavily criticised by British politicians and consumer organisations.

E-mail boilerplate and hyperlinked terms not enforced as between sophisticated commercial parties
Borden Ladner Gervais LLP February 9 2012
A New Jersey court has declined to enforce forum-selection clauses in the footers of e-mails or hyperlinked to a website.

Unclean hands don’t preclude recovery where the injury isn’t a necessary consequence of the illegal act
Borden Ladner Gervais LLP February 9 2012
Sean Delaney awoke from a nine-week coma to find himself severely injured as a result of a car accident, with ‘bleak’ prospects for future employment.

Internet

Leisure & Tourism

Be and let B&B
Manches LLP February 17 2012
Religious beliefs have again clashed with gay rights in the recent Court of Appeal case Bull & Bull v Hall & Preddy.

Rights of way over private roads – when permission becomes prescriptive
Howes Percival LLP January 30 2012
Are you a landowner?

Litigation

Early birds in West Yorkshire
Mills & Reeve LLP February 20 2012
From April this year there will be dramatic reductions in civil court opening hours, not for hearings but for face-to-face counter services.

When can SARS issue a “jeopardy assessment”?
DLA Cliffe Dekker Hofmeyr February 17 2012
The Tax Administration Bill (TAB) will soon be signed into law as the Tax Administration Act (TAA).

Tests-Achats – one year on
Mayer Brown LLP February 17 2012
It has been almost a year since the Tests-Achats ruling was made by the European Court of Justice (“ECJ”).

Be and let B&B
Manches LLP February 17 2012
Religious beliefs have again clashed with gay rights in the recent Court of Appeal case Bull & Bull v Hall & Preddy.

BBC prevail in Supreme Court FOI case
Brodies LLP February 17 2012
This week the Supreme Court unanimously dismissed an appeal from the Court of Appeal in the case of Sugar v BBC.

Enforcing UK judgments in Australia
Clayton Utz February 16 2012
There are two ways successful UK litigants can have their judgments recognised in Australia.

Prayers, councils and human rights
Mills & Reeve LLP February 16 2012
News outlets reported the decision in R ((1) National Secular Society (2) Bone) v Bideford Town Council (10 February 2012) as "Prayers before council meetings ruled unlawful" and "Christianity under attack..." and in doing so may well have created the wrong impression of what the case decided.

Does it matter who I associate with?
Morton Fraser February 16 2012
There is a well-known saying that we can choose our friends, but cannot choose our family.

Professional negligence: expert evidence in professional negligence claims
CMS Cameron McKenna February 15 2012
A recent High Court decision has provided practical guidance on the use of expert evidence in professional negligence claims.

Unknown associates
RPC February 13 2012
How much evidence do you need to substantiate a claim for tax relief?

Recent cases provide useful guidance on consultation requirements
Mills & Reeve LLP February 13 2012
Recent cases provide useful guidance on consultation requirements in the context of budget cuts and the new equality legislation.

DH guidance re preventing terrorism
Mills & Reeve LLP February 13 2012
On 22 December 2011, the DH issued new guidance on the role of healthcare organisations in preventing terrorism, entitled Building Partnerships, Playing Safe.

Make yourself at home?
Manches LLP February 10 2012
Siobhan Jones recounts the rise (& fall) of the "protester squatter".

Consultation on tribunal fees published
Bircham Dyson Bell February 10 2012
The Government is seeking views on two different options for charging fees in the employment tribunal.

Tweeting from English courts
Borden Ladner Gervais LLP February 9 2012
Lord Judge (real name), Lord Chief Justice of England and Wales, has issued guidance stating that representatives of the media and ‘legal commentators’ may send live, text-based messages from court without having to seek permission (subject to the possibility that their blogging or tweeting might need to be restricted in some cases); but members of the public must ask first, although that can be done informally by talking to court staff.

Every day can be (relatively) casual day in the UK Supreme Court and Privy Council
Borden Ladner Gervais LLP February 9 2012
The UKSC and the Judicial Committee of the Privy Council have announced that counsel on any given appeal before these two courts may, if they all agree, dispense with wigs and gowns.

Rights of way over private roads – when permission becomes prescriptive
Howes Percival LLP January 30 2012
Are you a landowner?

Media & Entertainment

BBC prevail in Supreme Court FOI case
Brodies LLP February 17 2012
This week the Supreme Court unanimously dismissed an appeal from the Court of Appeal in the case of Sugar v BBC.

Cyberbullying – a time to take note
Pitmans LLP February 16 2012
Thanks to the media and public figures speaking out the awareness of cyberbullying is ever increasing.

Glasgow 2014 brand - beware of ambush marketing
MacRoberts LLP February 16 2012
The Glasgow 2014 Commonwealth Games are set to take place between 23 July and 3 August 2014.

Olympic and Jubilee street parties
Morton Fraser February 15 2012
Last summer we saw a flurry of press reports suggesting that street parties to celebrate the Royal Wedding were being ruled out because of concerns about health & safety.

Non-profit Organizations

Private Client & Offshore Services

Changes to Prior Rights
Morton Fraser February 16 2012
Where someone dies without making a Will, the Succession (Scotland) Act 1964 provides the deceased’s spouse or civil partner has specific rights in their estate known as Prior Rights.

Making investments in UK real estate - a tax haven for non-UK residents?
Wragge & Co LLP February 16 2012
This analysis concerns investment in UK real estate by non-UK residents.

Product Liability

Earned recognition
Blake Lapthorn February 17 2012
A report published by the Food Standards Agency (FSA) this month concludes that consumers are generally in favour of targeted food safety inspections.

Professional Negligence

Projects & Procurement

CIL Regulation 123 - the effect on the use of s106 obligations
Mills & Reeve LLP February 16 2012
A couple of people have recently asked about the '5 or more planning applications' point made by CIL Reg 123.

The community infrastructure levy - update
Penningtons Solicitors LLP February 15 2012
Since the Community Infrastructure Regulations came into force last year, it has only been a matter of time until local authorities started implementation.

Accelerated restriction relaxation to end
Mills & Reeve LLP February 13 2012
The relaxation of the rules permitting the use of the accelerated restricted procedure ceased to apply from 1 January 2012.

Public

Universities and enterprise zones
Mills & Reeve LLP February 17 2012
Universities could find that through partnering with local authorities and businesses, they can be at the centre of new economic growth in their communities.

Treasury speaks on products and reform
SNR Denton February 17 2012
Mark Hoban, launching the simple products terms of reference spoke on the importance of simple products and of regulation.

The importance of engagement
Morton Fraser February 15 2012
Most health & safety advisors will tell you that engaging employees is a vital component of securing compliance with policies and procedures.

Public sector fights back against fraud
Cobbetts LLP February 2 2012
The National Fraud Authority will shortly publish their annual fraud report detailing the cost of fraud to the UK economy in 2011.

Referendum race - under starter’s orders
Brodies LLP February 2 2012
We have known since May 2011 that there would at some point in the life of the current Scottish Parliament be a referendum on the question of Scottish independence.

Shipping & Transport

Network Rail to be prosecuted for grayrigg train crash
Brodies LLP February 15 2012
A court hearing is due to commence at the end of next week, 24 February 2012, into the 2007 Virgin train crash in Cumbria that killed one passenger and injured 86.

Trade & Customs

White Collar Crime

SFO speaks on bribery compliance
SNR Denton February 17 2012
Richard Alderman has spoken on how it is important for businesses to set the tone from the top for Bribery Act compliance.

SFO seizes dividends paid by company that committed criminal offences
Mills & Reeve LLP February 16 2012
The Serious Fraud Office has used the civil recovery process under the Proceeds of Crime Act 2002, to pursue a holding company that benefitted from the illegal activities of its subsidiary.

Bribery update - warning bells sound for investors
Greenberg Traurig LLP February 16 2012
In January 2012, the highly publicised bribery case against the UK construction company Mabey & Johnson Limited ("M&J") reached a climactic conclusion.

Transparency International reports on foreign bribery cases brought to date in the UK
Edwards Wildman Palmer LLP February 15 2012
Transparency International UK has recently published a new report entitled "Deterring and punishing corporate bribery: An evaluation of UK corporate plea agreements and civil recovery in overseas bribery cases".

Record fine for financial services fraud
Cobbetts LLP February 9 2012
Britain's financial regulator has imposed a record fine on a leading City financier, Ravi Sinha.

USA

Arbitration

Relying on Concepcion, Pennsylvania District Court grants motion to compel individual arbitration on eve of class certification hearing
Dechert LLP February 21 2012
In one of the first cases applying Concepcion in the Third Circuit, the district court in Brown v. TrueBlue, Inc., No. 1:10-CV-0514, 2011 WL 5869773 (M.D. Pa. Nov. 22, 2011), held that an arbitration clause in an employment agreement that prohibited class arbitration and required that employees provide written consent to be represented in a lawsuit filed by another individual was valid and that the Supreme Court’s decision constituted a change in the law that justified an employer’s motion to compel arbitration fifteen months into litigation.

Saint Vacatur’s day: Feb. 3
Leonard Street & Deinard February 17 2012
The Sixth and Second Circuits addressed whether to vacate an arbitrator’s award recently.

Court declines to compel arbitration under “narrow” arbitration provision
Jorden Burt LLP February 15 2012
Union Insurance Company and other insurers entered into an “Agency-Company Agreement,” with broker Hull & Company, providing Hull with binding authority.

NLRB rules that employers may not obtain class action waivers
White & Case LLP February 15 2012
The National Labor Relations Board (the "NLRB") recently ruled that the Federal National Labor Relations Act (the "NLRA") precludes employers from requiring employees to sign arbitration agreements that include class action waivers.

Arbitration dispute headed for Sixth Circuit
Squire Sanders February 14 2012
In Rodriguez v Tropical Smoothie Franchise Development Corp., the Southern District of Ohio recently enforced an arbitration agreement in the franchise context.

NLRB takes two-steps back in changing decades old policy for board deferral to arbitration
Seyfarth Shaw LLP February 14 2012
On January 3, 2012 decision in D.R. Horton, 357 NLRB 184, the NLRB held that employer-employee agreements mandating the arbitration of non-National Labor Relations Act (NLRA) claims, but prohibiting class actions, violate the NLRA (see our One Minute Memo: http://www.seyfarth.com/publications/omm010712).

Supreme Court enforces arbitration of Credit Repair Organizations claims
Jorden Burt LLP February 13 2012
The United States Supreme Court reversed a Ninth Circuit Court of Appeals decision that affirmed a “right to sue” under the Credit Repair Organizations Act (CROA).

Class action arbitration bans - the Obama NLRB attempts to trump the Federal Arbitration Act and the Supreme Court
Epstein Becker Green February 13 2012
Two recent decisions on arbitration, one from the National Labor Relations Board ("NLRB" or "Board") and one from the Supreme Court of the United States, present an interesting question: Can employers limit employees from launching potentially costly class actions?

Federal appeals court refuses to enforce agreement to arbitrate antitrust claim on an individual basis
Mayer Brown LLP February 10 2012
On February 1, 2012, the U.S. Court of Appeals for the Second Circuit reaffirmed its earlier ruling refusing to enforce American Express’s arbitration provision on the ground that, in the court’s view, the plaintiffs had shown that it would be prohibitively expensive to arbitrate their antitrust tying claims on an individual basis.

Confidential arbitration award against AXA Re confirmed without opposition
Jorden Burt LLP February 9 2012
A court recently confirmed an arbitration award against AXA Re in a reinsurance dispute involving reinsurance contracts entered into by predecessor companies in the 1970s.

Court consolidates reinsurance cases before existing arbitration panel
Jorden Burt LLP February 8 2012
A federal district court consolidated several reinsurance cases to be heard before an arbitration panel already formed to hear a dispute between the parties, as well as a corporation which the parties agreed to keep confidential.

NLRB turns a blind eye toward Supreme Court rulings
Godfrey & Kahn February 6 2012
On January 6, 2012, the National Labor Relations Board (NLRB) published a decision, D.R. Horton, Inc. v. Cuda, in which it determined that employers covered by the National Labor Relations Act (NLRA) cannot, as a condition of employment, require employees to sign agreements waiving their right to file joint, class or collective claims.

Aviation

FAA Modernization and Reform Act of 2012
Jones Day February 17 2012
In 2010, the National Mediation Board ("NMB") changed its long-standing rules governing union representation elections in the rail and air industries.

DOL publishes notice of proposed rulemaking on FMLA regulations
Ford & Harrison LLP February 17 2012
On February 15, 2012, the Department of Labor (DOL) published its Notice of Proposed Rulemaking (NPRM) implementing the changes to the Family and Medical Leave Act (FMLA) made by the 2010 National Defense Authorization Act (NDAA) and the 2009 Airline Flight Crew Technical Corrections Act (AFCTCA).

DOL publishes its proposed rules on military family leave and flight crews; FMLA forms no longer "expired"
Porter Wright Morris & Arthur LLP February 16 2012
Yesterday, the Department of Labor published its proposed regulations to address the recently enacted changes to military leave and eligibility requirements for flight crew members.

Additional air carrier service is available at Ronald Reagan Washington National Airport
Wiley Rein LLP February 15 2012
Congress has once again approved legislation that will increase flights at Ronald Reagan Washington National Airport.

FAA Reauthorization Act amends RLA election procedures
Ford & Harrison LLP February 15 2012
On February 14, 2012, President Obama signed the FAA Reauthorization and Reform Act (the "Act") into law.

Tax law changes under the FAA Modernization and Reform Act of 2012
Wiley Rein LLP February 15 2012
The general aviation industry will be affected by several tax law changes made under the FAA Modernization and Reform Act of 2012 (the FAA Act).

Aircraft finance – a new opportunity for private equity funds?
Kaye Scholer LLP February 15 2012
According to the Federal Aviation Administration, the commercial air carrier industry will grow by a remarkable 3.7% over the next five years.

Holdover rent enforceable as liquidated damages in aircraft leases
Katten Muchin Rosenman LLP February 15 2012
A New York court has reaffirmed the enforceability of liquidated damages clauses for holdover rent in aircraft leases that are in addition to damages for failure to comply with return conditions.

The FAA Reauthorization and Modernization Act of 2012 should be welcomed by airlines
Wiley Rein LLP February 15 2012
For airlines the new legislation should be a welcome event. Authorization of funding for Federal Aviation Administration through fiscal year 2015 is, itself, a major legislative accomplishment.

Commercial division rules on enforceability of liquidated damages clauses
Sheppard Mullin Richter & Hampton LLP February 13 2012
In Wells Fargo Bank Northwest v. US Airways, Inc., 2011 NY Slip Op 52188(U) (Sup. Ct. N.Y. County Dec. 1, 2011), Justice Bernard J. Fried held that a liquidated damages provision requiring payment of a holdover fee equal to twice the monthly rent was reasonable and did not function as a penalty under New York contract law.

Li-Ion battery transport restrictions approved
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The Senate approved a Federal Aviation Administration reauthorization bill (H.R. 658, 75-20) February 6 containing a provision to restrict federal regulations on the air transport of lithium batteries.

Banking

Financial services L&E advisory: 12 issues to watch in 2012
Epstein Becker Green February 21 2012
For employers in the financial services industry, 2012 is already shaping up to be a mixed bag.

Financial institutions eye FATCA compliance – new US IRS guidance
Squire Sanders February 20 2012
The Foreign Account Tax Compliance Act (FATCA) was enacted in March 2010 as the revenue offset provision for other legislation.

Seventh Circuit upholds servicer's assessment of late fees and negative credit reporting
Frost Brown Todd LLC February 19 2012
In “an all-too-familiar story of our nation’s current economic predicament,” the United States Court of Appeals for the Seventh Circuit recently addressed a servicer’s application of late fees and negative credit reporting when a borrower entered into a forbearance agreement, but remained delinquent on his loan.

OCC announces reduction of printing and mailing
Katten Muchin Rosenman LLP February 17 2012
On February 2, the Office of the Comptroller of the Currency (OCC), regulator of national banks and federal savings associations, announced that it will phase out printing and mailing of hard-copy publications, including many now mailed to national banks, employees, and other interested parties.

Agencies issue guidance on junior lien loan loss allowances
Katten Muchin Rosenman LLP February 17 2012
On January 31, four federal financial regulatory agencies, the Federal Reserve Board, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Office of the Comptroller of the Currency, issued supervisory guidance on allowance for loan and lease losses estimation practices associated with loans and lines of credit secured by junior liens on one- to four-family residential properties, including second mortgages and home equity lines of credit taken out by mortgage borrowers.

Deadline to request review under the Independent Foreclosure Review extended to July 31
Katten Muchin Rosenman LLP February 17 2012
The Office of the Comptroller of the Currency (OCC) and the Board of Governors of the Federal Reserve System (Federal Reserve) announced on February 15 that the deadline for submitting requests for review under the Independent Foreclosure Review has been extended.

CFPB proposes “larger participants” rule
Dykema Gossett PLLC February 17 2012
The Consumer Financial Protection Bureau ("CFPB") has issued the first in what it anticipates will be a series of proposed rules defining “larger participants” for purposes of establishing CFPB supervisory jurisdiction over nonbanks.

The continuing saga of Bank of America’s RMBS settlement with institutional investors
Kelley Drye & Warren LLP February 17 2012
We have been following the settlement of institutional investors’ representations and warranties claims against Bank of America in connection with 530 residential mortgage-backed securities transactions.

No coverage for FDIC suit for erroneous appraisal performed before prior acts date
Wiley Rein LLP February 17 2012
Applying California law, a federal district court has held that an insurer had no duty to indemnify a real estate appraiser who allegedly made negligent misrepresentations in an appraisal conducted before the applicable policy’s prior acts date.

New York clarifies that private securities claims are not pre-empted by the Martin Act: Assured Guaranty (UK) Ltd. v. J.P. Morgan Investment, Management, Inc.
Quinn Emanuel Urquhart & Sullivan LLP February 17 2012
In a decision with far reaching implications for both private investors and the business community, New York’s highest court recently ruled that an individual plaintiff’s common-law causes of action for breach of fiduciary duty and negligence stemming from a bank’s purported mismanagement of the plaintiff’s investment account were not pre-empted by New York’s “blue sky” law, the Martin Act.

Types of loan agreements: revolving credit facilities
Curtis Mallet-Prevost Colt & Mosle LLP February 17 2012
Finally this month we consider revolving credit facilities.

Treasury releases proposed regulations on FATCA
Hunton & Williams LLP February 17 2012
On February 8, 2012, the Treasury Department and the Internal Revenue Service (“IRS”) issued proposed regulations with respect to the Foreign Account Tax Compliance Act (“FATCA”).

FinCEN extends due date for certain FBAR filers
Sutherland Asbill & Brennan LLP February 17 2012
On February 14, 2012, the Department of Treasury’s Financial Crimes Enforcement Network issued Notice 2012-1, which extended the filing deadline for both the 2010 and 2011 Report of Foreign Bank and Financial Accounts to June 30, 2013, for certain officers and employees with signature authority but no financial interest in a foreign financial account.

The Consumer Financial Protection Bureau proposes boundaries for its nonbank supervision of debt collection and credit reporting organizations
Foley & Lardner LLP February 17 2012
On February 16, 2012, the Consumer Financial Protection Bureau (“CFPB”) proposed a new regulation, pursuant to Section 1024 of the Consumer Financial Protection Act of 2010 (Title X of the Dodd-Frank Act) (the “Act”), intended to establish “the scope of coverage of the Bureau’s supervision authority for nonbank covered persons,” in particular as pertains to credit reporting and debt collection organizations.

Potential SIFIs take note – your future is being decided now: FRB prepares to act on enhanced prudential standards
Dechert LLP February 16 2012
Much attention has been focused on the Financial Stability Oversight Council (“FSOC”) as it moves to issue final rules concerning the process by which it will designate nonbank financial companies as systemically important financial institutions (“SIFIs”) that will be subject to supervision by the Board of Governors of the Federal Reserve System (“FRB”).

CFPB issues proposed rule defining “larger participants” for certain consumer financial markets
Morrison & Foerster LLP February 16 2012
Earlier today, the Consumer Financial Protection Bureau (“CFPB”) issued a proposed rule defining certain “larger participants” in nonbank markets for consumer financial products or services.

CFPB issues prototype monthly mortgage statement
Ballard Spahr LLP February 16 2012
The Consumer Financial Protection Bureau has issued an initial version of a prototype monthly mortgage statement to receive input directly from the public.

Negative option sales defendants settled with FTC
Manatt Phelps & Phillips LLP February 16 2012
Two individual defendants and their associated companies reached a settlement with the Federal Trade Commission, agreeing to pay almost $10 million over charges they engaged in negative option sales in violation of the Federal Trade Commission Act.

U.S. Supreme Court set to determine RESPA Section 8(b) dispute
Ballard Spahr LLP February 16 2012
The U.S. Supreme Court is set to hear oral arguments on February 21, 2012, in Freeman v. Quicken Loans, Inc. to determine whether the unearned fee prohibition in Section 8(b) of the Real Estate Settlement Procedures Act applies only when such fees are split between two or more parties.

Dealing with troubled properties
Reinhart Boerner Van Deuren SC February 16 2012
In a recent real estate update, I discussed approaches to working with lenders when a property has gone bad.

Settlement provides roadmap for servicing industry
Ballard Spahr LLP February 16 2012
The mortgage industry is watching for the “devil in the details” in the $25 billion settlement between five leading bank mortgage servicers and a coalition of state attorneys general and federal agencies announced on February 9, 2012.

A few interesting points about the proposed “larger participant” rule
Ballard Spahr LLP February 16 2012
This morning, the CFPB released a proposed rule to define “larger participants” subject to its supervision and enforcement authority.

In-state office requirement for Hawaii mortgage servicers
Ballard Spahr LLP February 16 2012
Effective July 1, 2012, certain Hawaii Mortgage Servicer Licensees will be required to maintain an in-state office location, staffed by at least one agent or employee for the purpose of addressing consumer complaints or inquiries, and for accepting service of process.

Multi-State Mortgage Committee releases SAFE Act examination guidelines
Ballard Spahr LLP February 16 2012
On February 8, 2012, the Multi-State Mortgage Committee issued SAFE Act Examination Guidelines for use by state non-depository mortgage regulators.

Home affordability index at record level
Leonard Street & Deinard February 16 2012
An American family’s ability to purchase a home is at its highest level in the last twenty years.

CFPB issues prototype monthly mortgage statement
Ballard Spahr LLP February 15 2012
The CFPB now wants comments on a prototype monthly mortgage statement.

HB 319: an analysis of the legal issues and history
Becker & Poliakoff PA February 15 2012
Joe Adams is the Managing Shareholder of the Naples and Fort Myers Offices of the Becker & Poliakoff Law Firm.

Building Consumer Financial Protection Bureau relationships: access to documents
Dechert LLP February 15 2012
The Consumer Financial Protection Bureau is developing policies and procedures to begin its work, and it has begun planning targeted examinations of banks and nonbanks.

In case you missed it - February 2012
Stoel Rives LLP February 15 2012
A smattering of bylaw amendments purporting to make Delaware the exclusive venue for shareholder derivative suits and claims of fiduciary duty breaches followed Vice Chancellor Laster’s suggestion in a 2010 case that such provisions would be enforceable.

Rule 23(c)(1)(b) requires precise class definition and list of all claims and defenses
Kelley Drye & Warren LLP February 15 2012
Charter One operates over 100 banks in Illinois.

Upcoming deadline for Form SHC – holdings of foreign securities
Ropes & Gray LLP February 15 2012
Treasury International Capital Form SHC (“Form SHC”) generally requires U.S. resident end investors and U.S. resident custodians to report information regarding (1) foreign securities that a U.S. resident safe-keeps for itself or for its U.S. resident clients, or that are held with a foreign-resident custodian, and (2) foreign securities that are entrusted to the safekeeping of a U.S. resident custodian.

Testimony before the Senate Banking Committee
Winston & Strawn LLP February 15 2012
Today, I testified before the Senate Banking Committee, Subcommittee on Financial Institutions and Consumer Protection, on executive compensation at financial institutions.

"Good standing" opinions issued on behalf of Wisconsin corporations and limited liability companies acting as borrowers
Reinhart Boerner Van Deuren SC February 15 2012
In the standard form real estate opinion provided by commercial lenders to local counsel, lenders commonly request local counsel to give a "good standing" opinion in order to provide basic assurances to the lender regarding the borrower's organizational status in that state.

Caveat jurista y'all: is the mortgage securing your property in South Carolina enforceable?
Baker & Hostetler LLP February 15 2012
The South Carolina Supreme Court’s ruling in Matrix Financial Services Corp v. Frazer, et al, may have a significant impact on lenders and borrowers operating directly or indirectly within the State.

Mortgage servicing update: government, servicers reach $25 billion settlement
SNR Denton February 15 2012
The US federal government and 49 state attorneys general have reached an unprecedented $25 billion settlement agreement (the Agreement) with five of the nation's largest mortgage servicers ("the Servicers"): Bank of America Corporation, JPMorgan Chase & Co., Wells Fargo & Company Inc., Citigroup Inc. and Ally Financial Inc. (formerly GMAC).

Mortgages and the UCC
Baker Donelson Bearman Caldwell & Berkowitz PC February 14 2012
While you might expect that these questions would have a different answer in each state, the Permanent Editorial Board (PEB) for the Uniform Commercial Code sought to answer these questions for the nation as a whole in a report it issued on November 14, 2011.

Treasury publishes highly anticipated “withholdable payment” FATCA regulations and outlines international cooperation alternative
Morrison & Foerster LLP February 14 2012
After months of waiting, the Treasury Department (“Treasury”) released proposed Foreign Account Tax Compliance Act (“FATCA”) “withholdable payment” regulations on February 8, 2012.

IRS releases proposed FATCA regulations
Latham & Watkins LLP February 14 2012
On February 8, 2012, the Internal Revenue Service (the IRS) released new proposed regulations (the Proposed Regulations) providing guidance for the implementation of the Foreign Account Tax Compliance Act (FATCA).

No private right of action under HAMP: the growing consensus
Baker Donelson Bearman Caldwell & Berkowitz PC February 14 2012
The Home Affordable Modification Program (HAMP) is designed to help homeowners avoid foreclosure by modifying qualifying loans to a level that is both affordable and sustainable.

Checking accounts to be discussed at CFPB town hall
Ballard Spahr LLP February 14 2012
The CFPB has announced that it will be holding a town hall in New York City on February 22 “to talk about checking accounts.” While the notice contains no information about the issues to be discussed, we expect the focus will be on fees and disclosures.

Bank concerns remain over confidentiality and waiver of privilege in connection with information and documents provided to the Bureau
Dykema Gossett PLLC February 14 2012
Amidst growing concerns over the protection of privileged information released to the CFPB, Richard Cordray appeased the bank industry in early February when he announced the Bureau will support legislation to protect data that institutions provide during exams.

Corday testimony sheds light on bureau’s activity and objectives
Dykema Gossett PLLC February 14 2012
On January 24, 2012, newly appointed Director of the Consumer Financial Protection Bureau, Richard Cordray, appeared before a House panel led by Republicans.

Bank of America's $1 billion False Claims Act settlement
Husch Blackwell LLP February 14 2012
As part of the much-publicized $26 billion mortgage foreclosure settlement between the five largest mortgage lenders, 49 states attorneys general, and the United States, Bank of America has agreed to pay $1 billion to resolve False Claims Act allegations relating to its mortgage lending practices.

Four critical issues affecting public commodity pools and derivative transactions under proposed regulations implementing the Volcker Rule
Sidley Austin LLP February 14 2012
On October 11, 2011, the Board of Governors of the Federal Reserve System (the “Board”), the Office of the Comptroller of the Currency (the “OCC”) and the Federal Deposit Insurance Corporation (the “FDIC”) issued a proposed rule implementing the requirements of new Section 13 of the Bank Holding Company Act of 1956 (the “BHC Act”), the so-called “Volcker Rule”.

Consumer Financial Protection Bureau shares feedback on student loans disclosures project
Dykema Gossett PLLC February 14 2012
As a part of its Know Before You Owe: Student Loans project, the Consumer Financial Protection Bureau (CFPB) released a prototype in October of the “financial aid shopping sheet” that a college would provide to prospective students about loan payments and financial aid.

FincCEN issues final rule requiring residential mortgage lenders and originators to implement anti-money laundering programs and to file suspicious activity reports
Goodwin Procter LLP February 14 2012
FinCEN issued a final rule (the “Final Rule”) requiring non-bank residential mortgage lenders and originators (“RMLOs”), as “loan or finance companies,” to file suspicious activity reports (“SARs”) and to establish anti-money laundering (“AML”) programs.

CFPB establishes the repeat offenders against military database
Dykema Gossett PLLC February 14 2012
On January 25, 2012, the CFPB announced that it would join efforts with the state Attorneys General and the Department of Defense to track companies and individuals who repeatedly target the military community and to crack down on financial scams directed at military service members, veterans and their families.

Federal banking agencies update guidance concerning allowance for loan and lease losses
Goodwin Procter LLP February 14 2012
The FRB, FDIC, OCC and NCUA (the “Agencies”) jointly released updated guidance (the “Guidance”) concerning allowance for loan and lease losses (“ALLL”) estimation practices associated with loans and lines of credit secured by junior liens (typically second mortgages and home equity lines of credit) on one- to four-family residential properties (“Junior Liens”).

GOP Senate opposition to Cordray appointment continues
Dykema Gossett PLLC February 14 2012
Republicans did not hold their fire as Richard Cordray appeared before the U.S. Senate Banking Committee, facing senators for the first time since his appointment as head of the Bureau last month.

Bureau to quickly focus on mortgage servicing issues; issues billing statement prototype
Dykema Gossett PLLC February 14 2012
Noting that the recent settlement with the five largest mortgage servicers only addressed some servicing issues, Richard Cordray emphasized the magnitude of servicing problems and the need for quick action to address them and help struggling homeowners.

CFPB and FTC enter into memorandum of understanding regarding regulation and enforcement
Dykema Gossett PLLC February 14 2012
On January 20, 2012, the CFPB entered into a Memorandum of Understanding (MOU) with the Federal Trade Commission (FTC) “to prevent duplication of efforts, provide consistency and ensure a vibrant marketplace for consumer financial products and services.”

Federal Reserve Board toughens oversight of SIFIs: enhanced prudential standards
Reed Smith LLP February 14 2012
Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd Frank") to deal with the myriad problems that it believed caused the 2008 financial crisis.

Six-month report to Congress demonstrates progress, maps direction of Bureau
Dykema Gossett PLLC February 14 2012
On January 30, 2012, the CFPB issued its first semi-annual report (the "Report”) to Congress.

Bank of America wins dismissal of Allstate lawsuit
Orrick Herrington & Sutcliffe LLP February 13 2012
On February 3, 2012, Judge Mariana Pfaelzer of the Central District of California dismissed Bank of America from litigation brought by Allstate Insurance Company and its affiliates arising out of Allstate's purchases of RMBS issued by Countrywide Financial Corporation.

Financial services legislative and regulatory update - February 13, 2012
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 13 2012
In a week that saw a major announcement intended to heal the housing crisis it was worth noting that it came nearly five years to the day of the beginning of the very credit crisis that resulted in the need for a settlement.

CFPB seeks input on monthly mortgage statement
Leonard Street & Deinard February 13 2012
The Consumer Financial Protection Bureau, or CFPB, is seeking public input on a draft monthly mortgage statement that is designed to make it easier for homeowners to understand their loans and avoid unnecessary costs and fees.

Fed agreement in principle with banking organizations regarding monetary sanctions
Orrick Herrington & Sutcliffe LLP February 13 2012
On February 9, the Fed announced its agreement in principle with five banks on $766.5 million in monetary sanctions against the banks for unsafe and unsound processes and practices in residential mortgage loan servicing and foreclosure processing.

District Court for the Northern District of Ohio denies certification in two consumer lending cases
Baker & Hostetler LLP February 13 2012
The District Court for the Northern District of Ohio recently denied certification in two related class actions brought under the Real Estate Settlement Procedures Act ("RESPA"), Toldy v. Fifth Third Mortgage Co. et al. (No. 1:09-CV-377) and Powers v. Fifth Third Mortgage Co. et al. (No. 1:09-CV-2059).

RMBS suits against Deutsche Bank dismissed
Orrick Herrington & Sutcliffe LLP February 13 2012
On February 7, 2012, Judge Jed Rakoff of the Southern District of New York dismissed claims against Deutsche Bank that had been brought by Dexia SA and Teachers Insurance & Annuity Association arising out of the purchase of $1.3 billion in RMBS.

Sealink brings RMBS suit against RBS
Orrick Herrington & Sutcliffe LLP February 13 2012
On February 2, 2012, Sealink Funding Ltd. filed a summons with notice against The Royal Bank of Scotland Group ("RBS").

Massachusetts Court rules on retailer’s collection of customer ZIP codes
Loeb & Loeb LLP February 13 2012
In a case of first impression, a federal district court in Massachusetts found that a person's ZIP code is “personal identification information” under a Massachusetts law (Mass. Gen. L. 93-105(a)) which prohibits retailers from collecting PII during a credit card transaction if the credit card issuer does not require such disclosure.

House and Senate Bills offer incomplete “fixes” to privilege waiver issue
Ballard Spahr LLP February 13 2012
In a recent blog on the Bacchus-Capito letter to CFPB Director Richard Cordray, possible “legislative fixes” to the highly publicized privilege waiver issues involving the Bureau and possible amendments to 12 U.S.C. §§ 1821(t) and 1828(x) were discussed.

Financial services
Patton Boggs LLP February 13 2012
On Thursday, February 9, the House passed a bill that would prevent Members of Congress from financial market trading based on nonpublic information they have obtained in the course of their Congressional work.

Storming the castle: what household items are exempt from execution?
Calfee Halter & Griswold LLP February 10 2012
According to the old adage, “a man’s home is his castle”.

ATM fee-notice litigation, Part I: Electronic Fund Transfer Ac basics
Nutter McClennen & Fish LLP February 9 2012
During recent months, plaintiffs across the country have commenced hundreds of cases in federal courts claiming that ATM operators failed to post physical signage on or at ATMs notifying consumers of fees imposed for ATM transactions.

Long-awaited decisions leave unresolved questions for private-label claimants
SNR Denton February 8 2012
Many holders of private-label residential mortgage-backed securities were anxiously awaiting a decision by Justice Eileen Bransten of the Supreme Court of New York, Commercial Division, in two highly-followed cases involving insurer claims of fraud and breach of contract against Countrywide.

FinCEN issues anti-money laundering regulations for mortgage lenders
Dorsey & Whitney LLP February 8 2012
More than a year after it proposed anti-money laundering (AML) regulations for mortgage lenders, the Financial Crimes Enforcement Network (FinCEN) has issued a new rule finalizing these requirements.

North Carolina Court of Appeals to consider whether lender's exercise of contractual rights constitutes an "unfair and deceptive" trade practice
Womble Carlyle Sandridge & Rice PLLC February 7 2012
This Spring, the North Carolina Court of Appeals will hear an appeal from a $2.1 million judgment after a jury verdict against a lender for unfair and deceptive trade practices arising out of its handling of a commercial loan gone bad.

Failure to provide mortgage note precludes relief from bankruptcy stay
Winston & Strawn LLP February 6 2012
On February 1st, the Tenth Circuit held that Deutsche Bank failed to establish it was a "party of interest" entitled to relief from a bankruptcy petition's automatic stay.

FinCEN launches MSB registration website
Winston & Strawn LLP February 6 2012
On January 27th, the Financial Crimes Enforcement Network ("FinCEN") announced the launch of a new money services business ("MSB") registration website to improve the availability of MSB registration information.

OCC going paperless
Winston & Strawn LLP February 6 2012
On February 2nd, the OCC announced plans to end paper distribution of news and issuances by June 1, 2012.

OCC announces directors workshop
Winston & Strawn LLP February 6 2012
The OCC will host a workshop for directors of nationally chartered community banks and federal savings associations in Wilmington, Delaware on March 19-21, 2012.

Agencies issue guidance on junior lien loan loss allowances
Winston & Strawn LLP February 6 2012
On January 31st, the Federal Reserve Board, FDIC, the National Credit Union Administration, and the OCC issued supervisory guidance on allowance for loan and lease losses ("ALLL") estimation practices associated with loans and lines of credit secured by junior liens on one-to four-family residential properties.

Collateralized loan obligations
Winston & Strawn LLP February 6 2012
On January 31st, the New York Times' DealBook discussed the uncertainty surrounding collateralized-loan obligations and whether, and to what extent, they will be subject to the Dodd-Frank Act's risk retention requirements.

Second Circuit orders antitrust suit against Amex to trial
Winston & Strawn LLP February 6 2012
On February 1st, the Second Circuit, on remand from the Supreme Court, held that neither Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758 (2010) nor AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), affected its original analysis.

Refinancing proposal
Winston & Strawn LLP February 6 2012
On February 1st, the Los Angeles Time summarized President Barack Obama's mortgage refinancing proposal.

Avoiding pitfalls in home mortgage foreclosures: recent changes to Michigan law
Barnes & Thornburg LLP February 3 2012
Michigan’s Governor Rick Snyder recently signed into law three bills regulating mortgage foreclosure by advertisement proceedings in the State of Michigan.

Capital Markets

More expert network insider trading cases
Dorsey & Whitney LLP February 21 2012
The U.S. Attorney’s Office in Manhattan and the SEC continue to expand the expert networking investigation.

Kinnucan finally arrested, but his case doesn’t tell us much
Brooks Pierce McLendon Humphrey & Leonard LLP February 20 2012
You may remember a dustup from late 2010 when FBI agents approached John Kinnucan at his house in Portland, Oregon, and tried to convince him to cooperate in the Justice Department’s widening investigation into insider trading.

IMA responds on Volcker rule
SNR Denton February 17 2012
IMA says US regulators implementing the Volcker rule should treat UK authorised funds the same as they treat US ones.

EBF responds on Volcker rule
SNR Denton February 17 2012
EBF has written to four US rulemakers in response to their consultation on joint notice of proposed rulemaking implementing the Volcker rule.

Treasury form SHC and private fund advisers
Katten Muchin Rosenman LLP February 17 2012
Form SHC is due once every five years as part of a survey conducted by the U.S. Department of the Treasury regarding ownership of foreign securities by U.S. residents.

Massachusetts Securities Division adopts new investment adviser regulations
Foley Hoag LLP February 17 2012
The Massachusetts Securities Division (the “Division”) has adopted new regulations related to the registration of investment advisers.

SEC issues new C&DI on description of say-on-pay advisory vote on proxy card and voting instruction form
Katten Muchin Rosenman LLP February 17 2012
On February 13, the Securities and Exchange Commission’s Division of Corporation Finance issued a new Compliance and Disclosure Interpretation (C&DI 169.07) which provides guidance as to the proper description on a proxy card and voting instruction form of an advisory shareholder vote to approve a registrant’s executive compensation (Say-on-Pay) that is required by Rule 14a-21 of the Securities Exchange Act of 1934, as amended.

SEC requests comments on FINRA’s Partial Amendment No. 1 to proposed Rule 5123 regarding private placement of securities
Drinker Biddle & Reath LLP February 17 2012
The Securities and Exchange Commission (SEC) recently issued Release No. 34-66203, which seeks comments on the Financial Industry Regulatory Authority’s (FINRA) Partial Amendment No. 1 (the Amendment) to proposed FINRA Rule 5123 (the Rule), which was released in October 2011.

SEC tightens rule on performance fees charged by advisers: investor net worth and asset requirements increased
Kelley Drye & Warren LLP February 17 2012
The Securities and Exchange Commission (“SEC”) announced on February 15, 2012 that it is tightening its rule on investment advisory performance fees by raising the net worth and asset requirements for investors and excluding the value of their homes from the net worth calculation.

Why agency fraud is like fraud on the FDA
Dechert LLP February 17 2012
In our rather terse (due to firm involvement) post on Monday concerning Merck & Co. v. Ratliff, ___ S.W.3d ___, 2012 WL 413522 (Ky. App. Feb. 10, 2012) – beating both BNA and 360 by two days, BTW – we mentioned the “interesting” aspects of that case.

SEC changes client qualification requirements for investment adviser performance-based compensation
Calfee Halter & Griswold LLP February 17 2012
On February 15, 2012, the U.S. Securities and Exchange Commission (SEC) adopted amendments to Rule 205-3 under the Investment Advisers Act of 1940, addressing circumstances in which an investment adviser may charge performance-based fees.

Mandatory survey requires entities to report foreign securities by March 2
Ice Miller LLP February 17 2012
The Department of Treasury, with assistance from the Federal Reserve Bank of New York (FRBNY), is conducting a mandatory survey which requires certain U.S. residents to report their holdings of foreign portfolio securities as of Dec. 31, 2011.

1st Circuit answers question of first impression: SOX whistleblower protection does not extend to employees of public company contractors or subcontractors
Venable LLP February 17 2012
The First Circuit, addressing what it called an “important question of first impression,” recently decided that employees working for contractors or subcontractors of public companies are not protected under the whistleblower provision of the Sarbanes–Oxley Act (“SOX”).

SEC revises the "qualified client" standards for registered investment advisers
Katten Muchin Rosenman LLP February 17 2012
The Securities and Exchange Commission has adopted amendments to Rule 205-3 under the Investment Advisers Act of 1940, as amended (the Advisers Act), to revise the definition of "qualified client."

Congress finally addresses insider trading... for itself
Fox Rothschild LLP February 16 2012
Insider trading has been of great attention over the last few years, resulting in some high profile prosecutions and large fines.

Everything’s [even more] up-to-date in Kansas City!
Allen Matkins Leck Gamble Mallory & Natsis LLP February 16 2012
Last summer, I wrote about a new stock exchange – “New U.S. Exchange – It’s Better Than A Magic Lantern Show“.

SEC staff issues global no-action relief from Exchange Act registration for restricted stock units
Morrison & Foerster LLP February 16 2012
On February 13, 2012, the staff of the U.S. Securities and Exchange Commission’s Division of Corporation Finance (the “Staff”) issued a global no-action letter that provides relief from the requirement to register under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) upon reaching the holder of record threshold due to the issuance of restricted stock units (“RSUs”).

SEC adopts final rules on advisory performance fees
Leonard Street & Deinard February 16 2012
The SEC has adopted a final rule on investment advisory performance fees to raise the net worth requirement for investors who pay performance fees, by excluding the value of the investor’s home from the net worth calculation.

NYSE further limits broker discretionary voting on corporate governance proposals for the 2012 proxy season
Fried Frank Harris Shriver & Jacobson LLP February 16 2012
On January 25, 2012, the NYSE announced that for certain types of corporate governance proposals it would no longer permit broker discretionary voting.

Exempt reporting advisers: requirements for investment advisers that qualify as venture capital advisers or private fund advisers
Jones Day February 16 2012
The Dodd-Frank Act changed the U.S. Investment Advisers Act of 1940 (the "Advisers Act") in a way that requires many more investment advisers to register with the U.S. Securities and Exchange Commission.

PLUS D&O Symposium 2012 – Day 2 third panel: foreign exposures
Edwards Wildman Palmer LLP February 16 2012
The third panel on Day 2 of the PLUS D&O Symposium discussed foreign exposures for U.S. companies.

Court finds securities rules must be clear to impose liability
Bracewell & Giuliani LLP February 16 2012
A federal district judge refused to impose liability on an investment adviser to a hedge fund and its CEO in an SEC enforcement action because the conduct was not clearly identified as being impermissible.

Another split decision for the SEC
Dorsey & Whitney LLP February 16 2012
The Commission obtained a partial victory in a late trading and market timing case against Pentagon Capital Management Plc and its Chief Executive Officer, Lewis Chester.

Say on pay: a practice pointer
Gardere Wynne Sewell LLP February 15 2012
This week, the SEC released a new Compliance and Disclosure Interpretation (“C&DI”) for Exchange Act Rule 14a-21.

Facebook founder, Mark Zuckerberg, expected to realize $6 billion in gross income on exercise of nonqualified stock options in Facebook's initial IPO
Fox Rothschild LLP February 15 2012
Under Section 83, the transfer of property in connection with the performance of services, results in compensation to the service provider in the year in which the property received is non-forfeitable or transferable, and, if neither, if a timely election is made under Section 83(b).

FINRA issues 2012 Priorities Letter
Baker Donelson Bearman Caldwell & Berkowitz PC February 15 2012
On January 31, 2012, the Financial Industry Regulated Authority (FINRA) issued its 2012 Annual Regulatory and Examination Priorities Letter (Priorities Letter).

Delay of investment adviser SRO legislation
Ropes & Gray LLP February 15 2012
Legislation aimed at creating a self-regulatory organization for investment advisers has been pushed back until spring, according to aides to House Financial Services Committee Chairman Spencer Bachus (R-Ala.).

Third party pricing of Level 2 securities a topic of SEC focus
Ropes & Gray LLP February 15 2012
In December 2011, in remarks before the American Institute of Certified Public Accountants National Conference on Current SEC and PCAOB Developments, Jason K.

Recent regulatory activity relating to the use of social media
Ropes & Gray LLP February 15 2012
As has been widely reported, the SEC conducted an inspection sweep last year to understand how investment advisers are using social media.

Asset manager fined for improper valuation of illiquid securities
Ropes & Gray LLP February 15 2012
On January 17, 2012, the SEC announced that it had settled enforcement proceedings involving allegedly improper valuations of certain illiquid fixed income securities, including collateralized debt obligations and mortgage- and asset-backed securities.

SEC Enforcement Division to focus on insider trading and conflicts of interest in private equity
Latham & Watkins LLP February 15 2012
The private equity industry should expect increased scrutiny by the Securities and Exchange Commission (SEC), particularly with respect to insider trading and how firms address conflicts of interest, according to recent speeches by representatives of the SEC Division of Enforcement’s new Asset Management Unit.

SEC and regulatory settlements: a new era?
Latham & Watkins LLP February 15 2012
In late 2011, the Securities and Exchange Commission (SEC) sued Citigroup Global Markets (Citigroup) in connection with its 2007 structuring and marketing of a $1 billion CDO.

DOL issues electronic guidelines for new 2012 participant investment and fee disclosures
McDermott Will & Emery February 15 2012
The U.S. Department of Labor recently issued guidelines for the electronic distribution of mandatory investment and fee disclosures for participants in self-directed account plans subject to ERISA.

C&DIs and the APA
Allen Matkins Leck Gamble Mallory & Natsis LLP February 15 2012
On Monday, Broc Romanek wrote that the SEC’s Division of Corporation Finance has issued a new Compliance & Disclosure Interpretation clarifying how say-on-pay proposals should appear on the proxy card.

MSRB proposes interpretation of Rule G-17 to restrict an underwriter's ability to consent as a bondholder to certain changes in authorizing documents
McGuireWoods LLP February 15 2012
On Feb. 7, 2012, the Municipal Securities Rulemaking Board (MSRB) released a draft of an interpretive notice concerning the application of MSRB Rule G-17 to an underwriter's ability to consent as a bondholder to certain changes to a trust indenture or a resolution under which municipal securities were issued ("Authorizing Documents").

Section 871(M) guidance on treatment of dividend equivalent payments
Alston & Bird LLP February 15 2012
On January 23, 2012, the IRS published both temporary (T.D. 9572) and proposed regulations (REG- 120282-10) under Section 871(m) regarding U.S. federal withholding tax on dividend equivalents.

SEC solicits comments on retail investors’ financial literacy and ways to improve disclosure
Ropes & Gray LLP February 15 2012
The SEC recently solicited comments for the study mandated by Section 917 of the Dodd-Frank Act regarding financial literacy among investors.

Delay of new rule imposing a fiduciary duty on brokers
Ropes & Gray LLP February 15 2012
The SEC recently announced that it has delayed proposing a new rule imposing a fiduciary duty on brokerage firms, in order to take more time to perform a cost-benefit analysis.

First Circuit holds that Section 806 of the Sarbanes-Oxley Act extends only to employees of public companies, not employees of private companies who are contractors or subcontractors for covered public companies
Sheppard Mullin Richter & Hampton LLP February 15 2012
In Lawson v. FMR LLC, No. 10-2240, 2012 U.S. App. LEXIS 2085 (1st Cir. Feb. 3, 2012), the United States Court of Appeals for the First Circuit, in a case of first impression, held that the whistleblower provision in Section 806 of Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A (“SOX”), applies only to employees of public companies, and does not protect employees of private companies who are contractors or subcontractors for the covered public company.

First Circuit limits SOX whistleblower coverage to employees of public companies
Goodwin Procter LLP February 14 2012
In an important case of first impression, the First Circuit recently ruled that whistleblower protection under Section 806 of the Sarbanes Oxley Act (“SOX”) is generally limited to employees of public companies.

SEC staff supplements FAQ on Form ADV and IARD
Goodwin Procter LLP February 14 2012
The staff of the SEC’s Division of Investment Management (the “Staff”) supplemented its “Frequently Asked Questions on Form ADV and IARD” with questions regarding mid-sized advisers, master-feeder arrangements, the identification of a private fund with its Form D file number, private fund identification numbers (PFIDs) and the calculation of regulatory assets under management.

SEC staff posts responses to questions about the family office exclusion under the Advisers Act
Goodwin Procter LLP February 14 2012
The staff of the SEC’s Division of Investment Management (the “Staff”) posted on the SEC website a set of responses to questions about Rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940 (the “Family Office Rule”), which provides an exclusion from the definition of “investment adviser” for a family office that meets the Rule’s conditions.

Legal and compliance officers left in doubt about their personal liability
Ropes & Gray LLP February 14 2012
On October 19, 2009, the SEC instituted an administrative proceeding against Theodore Urban, the former general counsel of a broker-dealer, alleging that he had “failed to supervise” a registered representative of the firm.

SEC advises on proxy card presentation of say-on-pay vote
Mayer Brown LLP February 14 2012
On February 13, 2012, the staff of the US Securities Exchange Commission’s Division of Corporation Finance issued the following Compliance and Disclosure Interpretation addressing how the advisory say-on-pay vote should be presented on proxy cards.

SEC releases new Say-on-Pay CD&I
Leonard Street & Deinard February 14 2012
On February 13, 2012, the SEC released new CD&I 169.07, which provides guidance on appropriate descriptions of the say-on-pay advisory vote required by Rule 14a-21 under the Exchange Act.

Indiana adopts new exemption for private fund advisers
Barnes & Thornburg LLP February 14 2012
On Jan. 9, 2012 the Indiana Secretary of State issued an Administrative Order (12-0012AO) (the “Administrative Order”) adopting a temporary exemption under the Indiana Uniform Securities Act (the “Indiana USA”) from registration of certain Indiana-based private equity and venture capital fund advisers.

Important new SEC guidance on the proper wording of Say on Pay proposals on the proxy card
Winston & Strawn LLP February 14 2012
As highlighted in Broc’s Blog this morning, yesterday the SEC Division of Corporation Finance published a new “Compliance and Disclosure Interpretation” regarding the proper wording of Say on Pay proposals on the proxy card.

SEC requires say-on-pay vote to be an “approval” on proxy card
McGuireWoods LLP February 14 2012
In a new CDI (169.07, issued February 13, 2012), the SEC staff has given four examples of how a say-on-pay vote can be described on a proxy card.

Whistleblower bounty program: corporate compliance program considerations
King & Spalding LLP February 13 2012
Whistleblower rules adopted under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) have established an award program that incentivizes whistleblowers to report possible violations of all federal securities laws, rules, and regulations to the U.S. Securities and Exchange Commission (“SEC”).

Federal Appeals Court limits SOX whistleblower protections to employees of public companies
Williams Mullen February 13 2012
In a case of first impression in the federal appellate courts, the United States Court of Appeals for the First Circuit recently ruled, in a 2-1 decision, that the whistleblower protections of the Sarbanes Oxley Act extend only to employees of “public companies”.

2011 year in review: selected federal securities litigation developments
Morgan Lewis & Bockius LLP February 13 2012
In 2011, the Supreme Court and the federal circuit courts issued a number of important decisions concerning securities fraud class actions.

Tax credit revived in budget proposal
Goodwin Procter LLP February 13 2012
An important note for the public finance community is that the budget extends and modifies the new markets tax credit (NMTC) program.

FINRA proposed amendments to reporting of mixed capacity OTC trades
Orrick Herrington & Sutcliffe LLP February 13 2012
On February 8, FINRA requested comment on a proposal to amend FINRA trade reporting rules relating over-the-counter trades in equity securities that are executed by a member firm in a mixed trading capacity (e.g., a single trade execution by a firm as principal and agent).

More Galleon related insider trading cases
Dorsey & Whitney LLP February 13 2012
Roomey Kahn, the former Intel executive turned government informant who helps spur the Galleon inquiry at the outset continues to aid enforcement officials in developing insider trading cases.

SEC issues no-action letter addressing registration requirements for certain advisory affiliates
Cadwalader Wickersham & Taft LLP February 13 2012
The staff of the Securities and Exchange Commission (the “Commission”) issued a no-action letter on January 18, 2012 to the American Bar Association’s Subcommittee on Hedge Funds clarifying the registration requirements for certain related entities under the Investment Advisers Act of 1940, as amended (the “Advisers Act”).

U.S.-listed insurers and reinsurers - navigate these key disclosure issues in your 2011 Form 10-K
Chadbourne & Parke LLP February 13 2012
With 10-K season upon us for calendar-year SEC filers, this Client Alert provides a snapshot of some key insurance-sector regulatory and accounting issues and how they might be addressed by industry participants in their Form 10-K filings this year.

US investment managers, financial institutions and others must file treasury Form SHC by March 2
Latham & Watkins LLP February 13 2012
Various US-resident investment managers, custodians and other endinvestors (including financial and nonfinancial organizations such as banks, broker-dealers, insurance companies, foundations and others) are required to submit Treasury Form SHC (Report of US Ownership of Foreign Securities, Including Selected Money Market Instruments) on or before March 2, 2012.

Plan fiduciaries and final guidance on disclosure of fee information
Vedder Price PC February 13 2012
Fee disclosure action time has arrived.

SEC authorizes FINRA to collect SARs from member firms
Orrick Herrington & Sutcliffe LLP February 13 2012
On January 26, pursuant to the Financial Crimes Enforcement Network regulations, the SEC issued a letter to FINRA authorizing FINRA staff to ask for suspicious activity reports (SARs) and SAR information from member firms in certain circumstances.

Commercial division clarifies limits of choice of law provision in indentures
Sheppard Mullin Richter & Hampton LLP February 13 2012
In the recent matter Wilmington Trust Natl. Assn. v. Vitro Automotriz, Index No. 652303/11 (N.Y. Sup. Dec. 5, 2011), Justice Bernard J. Fried of the Commercial Division addressed the obligations of guarantors of indentured notes.

MSRB request for comment on bondholder consent proposal
Orrick Herrington & Sutcliffe LLP February 13 2012
On February 7, the MSRB requested comments on a draft proposal on the circumstances under which municipal bond underwriters would violate their duty to deal fairly by consenting to certain amendments to bond authorizing documents.

Sarbanes-Oxley’s protection does not extend to employees of contractors of public companies
Foley & Lardner LLP February 13 2012
The Sarbanes-Oxley Act (SOX) provides “whistleblower” protection to employees of publicly traded companies who report corporate securities violations or fraud against investors.

Are you ready for the new reporting requirements for private fund advisers?
Baker & McKenzie February 10 2012
The Securities and Exchange Commission (“SEC”), jointly with the Commodity Futures Trading Commission, recently adopted new rules that will require certain advisers to private funds to periodically file reports on new Form PF.

Lobbying and public policy, financial services and products client alert: Taking stock: House passes amended Insider-Trading Bill
Patton Boggs LLP February 10 2012
The Stop Trading on Congressional Knowledge Act was introduced in the House by Representative Louise Slaughter and Representative Tim Walz in March 2011 (H.R. 1148).

Federal appeals court rules for fidelity, holding certain employees not protected by Sarbanes-Oxley whistleblower law
Nutter McClennen & Fish LLP February 10 2012
In a recent 2-1 decision, a federal appeals court sitting in Boston held that the term “employee” in the Sarbanes-Oxley Act’s whistleblower provision does not cover employees of private companies that manage public mutual funds.

SEC issues no-action letter clarifying position with respect to registration requirements of special purpose vehicles and affiliated investment advisers
Drinker Biddle & Reath LLP February 9 2012
On January 18, 2012, the Division of Investment Management (Staff) of the Securities and Exchange Commission (SEC) issued a no-action letter reaffirming its position that certain special purpose vehicles (SPVs) created by a registered investment adviser are not required to separately register as an investment adviser (No-Action Letter).

Williams v. Calypso Wireless, Inc., C.A. No. 7140-VCL (Del. Ch. Feb. 8, 2012) (Laster, V.C.)
Potter Anderson & Corroon LLP February 8 2012
In this post-trial memorandum opinion, the Court of Chancery ordered the appointment of a receiver for defendant Calypso Wireless, Inc.—a publicly registered but essentially non-operating company—to dissolve the corporation and wind up its affairs under the authority of Section 322 of the General Corporation Law of the State of Delaware (the “DGCL”).

Volcker divisions
Winston & Strawn LLP February 6 2012
On February 2nd, Reuters reported that business groups are divided on how the Volcker rule's prohibition against proprietary trading should address market making and hedging activities.

MSRB defends its proposed fair dealing amendments
Winston & Strawn LLP February 6 2012
On January 31st, the Bond Buyer summarized the Municipal Securities Rulemaking Board's defense of its proposed amendments to Rule G-17, which would impose fair dealing requirements on municipal advisors.

OCIE director addresses the compliance outreach program
Winston & Strawn LLP February 6 2012
On January 31st, Carlo V. di Florio, SEC Director, Office of Compliance Inspections and Examinations, discussed the growing importance of compliance within a firm's culture.

FINRA fee rate notice
Winston & Strawn LLP February 6 2012
On February 3rd, FINRA advised that effective February 21, 2012, the Section 31 fee rate applicable to specified securities transactions on the exchanges and in the over-the-counter markets will decrease from its current rate of $19.20 per million dollars in transactions to a new rate of $18.00 per million dollars in transactions.

SEC approves proposed telemarketing rules
Winston & Strawn LLP February 6 2012
On January 30th, the SEC approved FINRA's proposed adoption of FINRA Rule 3230 (Telemarketing) in the FINRA Consolidated Rulebook.

Advisory Committee on Small and Emerging Companies makes recommendations
Winston & Strawn LLP February 6 2012
On February 1st, CFO.com reported that the SEC's Advisory Committee on Small and Emerging Companies has voted to recommend that the SEC raise to 1000, the number of shareholders a company may have before having to file financial statements with the SEC.

Court approves settlement it previously questioned
Winston & Strawn LLP February 6 2012
On February 2nd, the New York Times reported that the federal court overseeing the SEC's accounting fraud action against the Koss Corporation and Michael J. Koss, has approved the proposed settlement with minor changes.

NYSE Euronext announces amendments to Rule 103b
Winston & Strawn LLP February 6 2012
On January 31st, NYSE Euronext announced that the New York Stock Exchange and NYSE Amex filed with the SEC rule proposals to amend Exchange Rule 103B to extend the allocation sunset policy from six months to 12 months; permit an issuer to submit a written letter to an Exchange Selection Panel ("ESP") expressing a preference for a Designated Market Maker ("DMM") if the issuer has delegated authority to the Exchange to select the DMM unit; and align the quiet period for issuer contact with DMM units or the ESP.

NYSE proposes NYBX immediate-or-cancel order
Winston & Strawn LLP February 6 2012
On January 24th, the SEC provided notice of the New York Stock Exchange's filing of a proposal establishing an NYBX immediate-or-cancel ("IOC") order.

CME proposes amendments concerning the CDS guaranty fund
Winston & Strawn LLP February 6 2012
On January 26th, the SEC provided notice of the Chicago Mercantile Exchange's filing of a proposal amending the rules for its credit default swap guaranty fund.

2011 insider trading annual review
Morrison & Foerster LLP February 6 2012
2011 gave us another year of highly-publicized success for enforcement of insider trading laws.

Insights from Winston & Strawn
Winston & Strawn LLP February 6 2012
Recently, the Division of Investment Management of the Securities and Exchange Commission (the "SEC") issued a no-action letter (the "2012 Letter") providing important guidance regarding investment adviser registration under the Investment Advisers Act of 1940 (the "Advisers Act").

SEC Inspector General issues final report on commission rulemaking
Winston & Strawn LLP February 6 2012
On January 27th, outgoing SEC Inspector General H. David Kotz released the Office of the Inspector General's ("OIG") final report on the SEC's cost-benefit analysis of Dodd-Frank Act rulemakings.

MSRB rule proposals
Winston & Strawn LLP February 6 2012
On January 30th, Bloomberg reported that the Municipal Securities Rulemaking Board will submit to the SEC two proposed rule changes.

OXwhistleblower provisions and privately owned investment advisers
Winston & Strawn LLP February 6 2012
On February 3rd, the First Circuit addressed an issue of first impression at the appellate level.

Senate passes ethics bill
Winston & Strawn LLP February 6 2012
On February 2nd, the Washington Post reported that the Senate has overwhelmingly passed an ethics bill that not only prohibits insider trading by legislators and their staff, but also prohibits insider trading by senior officials in the executive branch.

Regulators may exempt foreign sovereign debt from Volcker Rule
Winston & Strawn LLP February 6 2012
On January 31st, Bloomberg reported that U.S. regulators responsible for implementing the Dodd-Frank Act's prohibition against proprietary trading may exempt foreign sovereign debt from the restriction.

SEC and CFTC issue joint report on international swaps regulation
Winston & Strawn LLP February 6 2012
On January 31st, the SEC and CFTC published a joint report on international swap regulation.

SEC approves increased trading activity fee
Winston & Strawn LLP February 6 2012
On January 31st, FINRA announced that effective March 1, 2012, the Trading Activity Fee ("TAF") rate for sales of covered equity securities will increase from $0.000090 per share for each sale of a covered equity security to $0.000095 per share, with a corresponding increase to the per-transaction cap for covered equity securities from $4.50 to $4.75.

Additional insider trading charges filed against Gupta
Winston & Strawn LLP February 6 2012
On January 31st, the New York Times' DealBook reported that the U.S. Attorney has filed additional insider trading charges against former Goldman Sachs board member Rajat Gupta.

Commercial Property

Commercial leases in bankruptcy
Wiley Rein LLP February 17 2012
The last several years have seen bankruptcy filings from prominent retail chains such as Borders, Circuit City, Blockbuster, Movie Gallery and Ritz Camera.

House Subcommittee holds mark-up of Affordable Housing and Self Sufficiency Improvement Act of 2012
Ballard Spahr LLP February 17 2012
On February 7, 2012, the Insurance Housing and Community Opportunity Subcommittee of the House Financial Services Committee marked up a discussion draft of the Affordable Housing and Self Sufficiency Improvement Act of 2012.

New changes to the NC property tax appeal process
Nexsen Pruet February 16 2012
According to ancient lore, the Mayans have long predicted 2012 might bring the end of the world.

Dealing with troubled properties
Reinhart Boerner Van Deuren SC February 16 2012
In a recent real estate update, I discussed approaches to working with lenders when a property has gone bad.

Who made USGBC’s top 10 list for LEED buildings?
Goodwin Procter LLP February 16 2012
The U.S. Green Building Council (USGBC) has announced the top 10 states for LEED-certified buildings per capita in 2011.

Disaffiliating Missouri congregation retains title to church property
Holland & Knight LLP February 16 2012
In Heartland Presbytery v. Gashland Presbyterian Church, Case No. WD 73064, 2012 WL 42897 (Mo.App. W.D. Jan. 10, 2012), the Missouri Court of Appeals for the Western District applied the neutral principles of law approach, including “objective, well-established concepts of trust and property law,” to find that a disaffiliating local congregation did not hold title to its church property in trust for the denomination.

Letters of intent, proposals and term sheets in lease transactions
LeClairRyan February 16 2012
In a prior blog post I discussed strategies for being more efficient in lease transactions.

Home affordability index at record level
Leonard Street & Deinard February 16 2012
An American family’s ability to purchase a home is at its highest level in the last twenty years.

Parties agree to dismiss Fair Housing Act “disparate impact” case pending before the Supreme Court
Sutherland Asbill & Brennan LLP February 16 2012
In November, the Supreme Court of the United States agreed to decide whether “disparate impact” claims are cognizable under the federal Fair Housing Act and, if so, how such claims should be analyzed.

Adjusting co-tenancy provisions to backfill closed anchor stores
Husch Blackwell LLP February 15 2012
The Great Recession has been a difficult time for retail in general and particularly for the shopping mall industry.

Who prepares your association's tax return?
Becker & Poliakoff PA February 15 2012
A Las Vegas HOA is currently fighting with the IRS over the question of whether $2 million held in the HOA’s savings account is subject to income tax at the rate of 30%.

Dismissal of fair housing case perpetuates uncertainty on disparate impact claims
Ballard Spahr LLP February 15 2012
On February 10, the parties to Magner v. Gallagher agreed to the dismissal of the case before the U.S. Supreme Court, after all briefing was complete and less than three weeks before the scheduled oral argument.

Oregon HB 4121: another round of legislation related to wineries on agricultural lands
Stoel Rives LLP February 14 2012
Oregon House Bill (“HB”) 4121 expands the basis for allowing wineries to be sited on land zoned Exclusive Farm Use (“EFU”).

California redevelopment: the winding road ahead
Jeffer Mangels Butler & Mitchell LLP February 14 2012
The end of California’s redevelopment agencies has left many developers, affordable housing advocates, property owners and even public agencies themselves wondering if existing and approved development projects will be stuck in a state of regulatory limbo for the foreseeable future.

Ga State Senate Bill 401 seeks to promote property rights and renewable energy
Smith Gambrell & Russell LLP February 14 2012
On February 7, 2012, Georgia State Senator Buddy Carter (R-Pooler, Dist. 1) introduced SB 401, which seeks to clarify the purpose of the Georgia Cogeneration and Distributed Generation Act of 2001 (“CoGen Act”) and remove artificial barriers to renewable energy development in the state.

First court decision regarding HICPA
Fox Rothschild LLP February 14 2012
On January 18, 2012, Armstrong County, PA Judge Kenneth G. Valasek ruled that the construction of an addition to a house may be a "home improvement" and therefore governed by the Home Improvement Consumer Protection Act ("HICPA").

Fair Housing Act disparate impact case pulled from Supreme Court docket
Pepper Hamilton LLP February 14 2012
In an abrupt turn of events, on February 10, 2012, the parties in Magner v. Gallagher (Sup. Ct. Docket 10-1032), a case that presented the Supreme Court with the chance to decide whether the disparate impact method of proving discrimination is available under the Fair Housing Act (FHA), agreed to dismiss the case.

New hope for PACE Program
Goodwin Procter LLP February 14 2012
A recent California federal district court ruling has revived the Property Assessed Clean Energy (PACE) Program, a policy that allows municipalities to issue bonds to property owners as a way to finance the upfront costs of energy-efficient improvements such as solar panels.

AAO denies RC application to build resort suites
Fredrikson & Byron PA February 14 2012
USCIS recently published an Administrative Appeals Office (AAO) decision affirming denial of a proposal for a regional center designation.

Supreme Court schedules Indian law cases for oral arguments in April
Godfrey & Kahn February 13 2012
The Supreme Court will hear arguments in Match-E-Be-Nash-She-Wish Band v. Patchak, which relates to the federal government's immunity from lawsuits challenging title to land held in trust for Indian tribes' use for gaming, on April 24th.

A recent familial status case: management did not really do that -- right?
Fox Rothschild LLP February 13 2012
I have written any number of times about the perils of "familial status" discrimination.

Murder/suicide of previous owners of property could be a material defect that must be disclosed, says Pennsylvania court
Borden Ladner Gervais LLP February 9 2012
When the Jaconos sold their house to Janet Milliken, they did not disclose the fact that the previous owner of the property was alleged to have killed his wife, and then himself, on the premises.

Refinancing proposal
Winston & Strawn LLP February 6 2012
On February 1st, the Los Angeles Time summarized President Barack Obama's mortgage refinancing proposal.

Neither CEQA nor the public trust requires exclusion of current conditions in determining baseline for purposes of lease renewal on tide and submerged lands
Sheppard Mullin Richter & Hampton LLP February 2 2012
The proper baseline for analyzing potential environmental impacts under the California Environmental Quality Act (CEQA) of a project that requires renewal of an existing lease are the existing, actual conditions at the property including impacts of the operations being carried on pursuant to the lease.

Connecticut: the deadline for challenging property tax assessments is approaching
McCarter & English LLP January 31 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.

The passing of the holiday season signals that property tax appeal season is upon us
Cole Schotz Meisel Forman & Leonard PA January 23 2012
With measurable declines in the real estate market persisting, evidenced by the sluggish movement of vacancy and rental rates, a tax appeal is most likely justified in 2012.

Company & Commercial

Solar panel rivals in trade secret and data theft spat in California federal court
Seyfarth Shaw LLP February 18 2012
On February 13, SunPower Corporation, a manufacturer of solar panels, sued five former employees, as well as its rival, SolarCity Corporation in federal court in San Francisco, California and sought a temporary restraining order against the defendants.

Stockholder granted access to books and records of company accused of fraud
Milbank, Tweed, Hadley & McCloy LLP February 17 2012
In several decisions handed down over the last two years, the Delaware Court of Chancery has demonstrated its willingness to resolve disputes over demands for access to corporate books and records in favor of the requesting stockholder.

California corporate contribution initiative cleared for circulation
Allen Matkins Leck Gamble Mallory & Natsis LLP February 17 2012
Opponents of the Supreme Court’s decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876, 558 US 50, 175 L. Ed. 2d 753 (2010) are fighting back in California on numerous fronts.

March 1 deadline looms in Massachusetts
Arent Fox LLP February 17 2012
If your company collects information from Massachusetts residents, you should be aware of the March 1, 2012, deadline imposed by the Massachusetts Standards for the Protection of Personal Information of Residents of the Commonwealth (the “Regulations”).

There are limits to the CFPB’s jurisdiction!
Ballard Spahr LLP February 16 2012
On February 6, Professor Jeff Sovern published a blog post in which he seems to be urging the CFPB to regulate rent-to-own (“RTO”) companies.

Delaware kerfuffle over exclusive forum for corporate derivative suits - applicable to LLCs?
Stoel Rives LLP February 16 2012
To prevent forum-shopping by plaintiffs in shareholder derivative suits, some Delaware corporations in the last couple of years have amended their bylaws to lock in the Delaware Court of Chancery as the exclusive forum for derivative suits.

Industry reaction to USDA office closures
Faegre Baker Daniels February 16 2012
The U.S. Department of Agriculture ushered in the new year at the American Farm Bureau Federation Annual Meeting on January 9, with Secretary Tom Vilsack's announcement of USDA's "Blueprint for Better Services."

Director self assessment questionnaire
Dykema Gossett PLLC February 16 2012
It's no surprise these days that board and committee evaluations have become a recommended “best practice,” with the New York Stock Exchange leading the way.

Pennsylvania law firm sues former attorney and new firm for unfair competition
Littler Mendelson February 16 2012
Although law firm departures can be bitter, they rarely result in litigation.

Say on pay: a practice pointer
Gardere Wynne Sewell LLP February 15 2012
This week, the SEC released a new Compliance and Disclosure Interpretation (“C&DI”) for Exchange Act Rule 14a-21.

FTC: marketers of background screening mobile applications may be consumer reporting agencies
Fenwick & West LLP February 15 2012
On February 6, 2012, the Federal Trade Commission ("FTC") issued a sample letter to companies promoting mobile applications warning that they may be considered consumer reporting agencies for purposes of the federal Fair Credit Reporting Act ("FCRA").

House of Representatives passes bill to amend Administrative Procedure Act
Wiley Rein LLP February 15 2012
On December 2, 2011, the U.S. House of Representatives passed the Regulatory Accountability Act of 2011.

California extends “forced labor” disclosure to retailers and manufacturers outside of the state
Winston & Strawn LLP February 14 2012
On September 30, 2010, the Supply Chains Act1 was signed into law aiming to ensure California consumers are provided with information regarding corporate efforts to eradicate slavery and human trafficking from supply chains.

Is a director an “official at the highest level of corporate management”?
Allen Matkins Leck Gamble Mallory & Natsis LLP February 14 2012
Liberty Mutual Ins. Co. v. Superior Court, 10 Cal. App. 4th 1282 (1992) involved an attempt by a plaintiff to depose the president of an insurance company.

Court issues order affecting the sale of gift cards in New Jersey
Bryan Cave LLP February 14 2012
In 2010, New Jersey amended its unclaimed property statute to allow for the escheat of the remaining balance of gift cards after two years of inactivity.

Party does not forfeit argument when it fails to cite best authority
Kelley Drye & Warren LLP February 14 2012
In late 2010, Allegheny Technologies, Inc. acquired Ladish Co. for cash and stock.

Embezzlement & misappropriation of trade secrets lawsuits more prevalent
Gardere Wynne Sewell LLP February 14 2012
A Houston law firm recently filed for a TRO against its former office manager for embezzlement, misappropriation of trade secrets, confidential and privileged information, unfair competition, and breach of fiduciary duty.

Fifth Circuit affirms courts’ discretion on fee methods in common fund class settlements
Haynes and Boone LLP February 13 2012
The United States Court of Appeals for the Fifth Circuit has confirmed that lower courts may use their discretion in choosing either of two methods — the “percentage method” or “lodestar method” — to calculate attorneys’ fees in class action suits.

Ohio corporate law changes
Porter Wright Morris & Arthur LLP February 10 2012
Recently enacted legislation makes a number of important changes to the Ohio General Corporation Law and the Ohio Limited Liability Company Act that financial institutions and their executives should consider.

FTC roundtables on motor vehicle consumer protection issues could lead to rulemaking or law enforcement
LeClairRyan February 10 2012
In 2011, the Federal Trade Commission (FTC) held three public national roundtables to gather information on consumers' experiences when buying or leasing motor vehicles.

Engaging in contracting as a business organization
Becker & Poliakoff PA February 10 2012
Section 489.105(13), Florida Statutes defines a “Business Organization” as “any partnership, corporation, business trust, joint venture, or other legal entity which engages or offers to engage in the business of contracting or acts as a contractor as defined in this section.”

Swiping customers’ driver’s licenses may steer Best Buy into trouble
Arent Fox LLP February 9 2012
It is a common practice for retailers to collect customers’ personal information when processing the exchange or return of merchandise.

Mobile applications - now under the FTC's watchful eye
Chadbourne & Parke LLP February 7 2012
Under the Fair Credit Reporting Act, a company is deemed a consumer reporting agency if it (for monetary fees, dues, or on a cooperative nonprofit basis), "…regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports".

Amalgamated Bank v. NetApp, Inc., C.A. No. 6772-VCG (Del. Ch. Feb. 6, 2012) (Glasscock, V.C.)
Potter Anderson & Corroon LLP February 6 2012
In this memorandum opinion, which followed a bench-ruling in favor of a plaintiff stockholder seeking books and records under Section 220 of the General Corporation Law of the State of Delaware, the Court of Chancery denied plaintiff’s motion to compel the production of additional documents from the defendant corporation.

Competition

FERC reaffirms policy for assessing horizontal market power
Morgan Lewis & Bockius LLP February 17 2012
On February 16, the Federal Energy Regulatory Commission (FERC) issued an order that reaffirms its existing policies regarding the analysis of horizontal market power when reviewing mergers and other transactions under Section 203 of the Federal Power Act (FPA) and when assessing eligibility for market-based rate authority under FPA Section 205.

Illinois Appellate Court applies Reliable Fire retroactively to reverse and remand hair salon restrictive covenant case
Littler Mendelson February 14 2012
In Reliable Fire Equipment Company v. Arrendondo, the Supreme Court of Illinois dramatically altered how protectable legitimate business interests in noncompetition agreements were to be reviewed under Illinois law, clarifying what it felt were decades of misapplication.

Oregon federal court permits declaratory relief suit to proceed in race to judgment non-compete dispute
Seyfarth Shaw LLP February 13 2012
In light of Valentine’s Day, a blog involving two competitors specializing in heart rhythm therapy seems fitting.

Plaintiff left shopping for claims after merger: DC Court denies class certification
Dechert LLP February 13 2012
The “rigorous” analysis of class certification issues imposed in Wal-Mart Stores, Inc. v. Dukes applies in antitrust cases, endors-ing the approach of the Third Circuit (In re Hydrogen Peroxide) and other courts.

Construction

Public/private partnership bill gets facelift, but still has momentum
Becker & Poliakoff PA February 14 2012
Senate Bill 576 on public/private partnership construction was drastically revised, but the core facets of the legislation, opening the door to great public construction opportunities, remains unimpaired.

Copyrights

Judge allows sales of “used” MP3 files to continue
Scott & Scott LLP February 22 2012
On February 6, 2012, a judge for the U.S. District Court for the Southern District of New York ruled that ReDigi – an upstart, online marketplace for “used” MP3 files – can continue operating pending the outcome of copyright-infringement litigation initiated by Capitol Records.

European Court of Justice sets criteria for balancing privacy rights and copyrights in the social networking context
Hunton & Williams LLP February 17 2012
On February 16, 2012, the European Court of Justice held in the SABAM vs. Netlog case (C-360/10) that imposing an obligation on social networks to install a “general filtering system” to prevent all users from sharing copyrighted music is disproportionate to the extent that such filters may infringe on user privacy rights or block lawful communications.

Defendant has right to bring declaratory trademark claims
Holland & Knight LLP February 17 2012
Judge Reinhard granted in part plaintiff ExactLogic's motion to dismiss defendant Xactlink's counterclaims.

US Supreme Court sides with Congress and foreign copyright owners on restoration of copyright protection
SNR Denton February 16 2012
The recent decision of the United States Supreme Court will likely result in taking potentially large amounts of works from the public domain and restoring copyright protection to their owners.

Advanced copyright issues on the Internet
Fenwick & West LLP February 15 2012
During recent years, the Internet has become the basic foundational infrastructure for the global movement of data of all kinds.

Revisiting the "safe harbor" provisions of the DMCA
Weintraub Genshlea Chediak Law Corporation February 10 2012
In late December, the Ninth Circuit revisited the “safe harbor” provisions of the Digital Millennium Copyright Act (“DMCA”) in the case UMG Recordings, Inc.

Online piracy war heats up
Weintraub Genshlea Chediak Law Corporation January 27 2012
In my last column of 2011 I wrote about the proposed “Stop Online Piracy Act” introduced in the United States Congress to provide the government with enhanced, but highly controversial, tools to fight online copyright infringement.

Corporate Finance/M&A

ERISA Section 510 claim requires specific intent to interfere with benefits
Kelley Drye & Warren LLP February 17 2012
In mid-2003, Abbott Laboratories decided to spin off its Hospital Products Division, creating Hospira.

Private equity investing in the dialysis sector - Part II
McGuireWoods LLP February 15 2012
Part II of our series on private equity investing in dialysis discusses other dialysis companies backed by private equity and highlights some key considerations for investors and companies.

Deal primary: electing the right transaction structure
Haynes and Boone LLP February 15 2012
You are the general counsel of a public company, and your board and your CEO are considering the company’s strategic acquisition options.

Feds offer matching funds for VCs
Dinsmore & Shohl LLP February 10 2012
Great news for venture capital firms that invest at least 50% of their money in early-stage companies.

Delaware Court awards damages for breach of obligation to negotiate in good faith
Borden Ladner Gervais LLP February 9 2012
SIGA wanted to develop a smallpox drug but needed money to do it.

Corporate Immigration

U.S. Department of Labor announces new regulations governing H2-B non-agricultural guestworker visas
Franczek Radelet PC February 17 2012
On February 10, 2012, the Department of Labor’s Employment and Training Administration and Wage and Hour Division announced that it would issue new regulations requiring employers that import foreign guestworkers for seasonal positions to make a greater effort to recruit U.S. workers.

E-Verify self check now available nationwide
Littler Mendelson February 16 2012
Launched in March 2011, and subsequently available in 21 states plus the District of Columbia, E-Verify Self Check is now accessible in all other states plus Guam, Puerto Rico, the U.S. Virgin Islands, and the Commonwealth of Northern Mariana Islands.

New USCIS VIBE iUpdate tool
Littler Mendelson February 16 2012
Validation Instrument for Business Enterprises (VIBE) is a web-based adjudication tool used by U.S. Citizenship and Immigration Services (USCIS) to validate basic information about companies or organizations petitioning to employ certain alien workers.

DHS FY2013 budget proposal – will E-Verify become mandatory?
LawLogix Group February 15 2012
Like clockwork this time of year, the Department of Homeland Security released its annual budget proposal for FY2013, totaling more than $59 billion.

L-1 visas valid longer than petition, avoiding renewals
Baker Donelson Bearman Caldwell & Berkowitz PC February 15 2012
The U.S. Department of State issued a revised regulation allowing consular offices to issue L-1 visas for intracompany transferees with validity period longer than the underlying petition approval and up to the "reciprocity limit" for the worker's nationality (5 years, for many countries), avoiding need for initial visa renewals.

State department releases March 2012 Visa Bulletin
Littler Mendelson February 15 2012
The U.S. Department of State has released the March 2012 Visa Bulletin, which summarizes visa availability.

April 1 deadline for filing H-1B visa petitions approaches
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 14 2012
This alert is a reminder of the rapidly approaching April 1, 2012 “deadline” for the filing of H-1B worker petitions for Fiscal Year 2013.

Justice Dept. settles document discrimination complaint against University of California San Diego Medical Center
Seyfarth Shaw LLP February 14 2012
The Department of Justice reached an agreement on January 4, 2012, with the University of California San Diego Medical Center, resolving a complaint filed on December 6, 2011, alleging that the medical center failed to comply with proper employment eligibility verification processes for noncitizens authorized to work in the United States.

U.S. Consulate in Chennai stops processing immigrant visa petitions
Seyfarth Shaw LLP February 14 2012
As of January 1, 2012, the U.S. Consulate General in Chennai, India, no longer processes immigrant visa petitions.

DHS extends TPS designation for El Salvador
Seyfarth Shaw LLP February 14 2012
The Department of Homeland Security (DHS) has extended the designation of El Salvador for temporary protected status (TPS) for 18 months from its current expiration date of March 9, 2012.

I-9 audit guidance for employers from the Office of Special Counsel
Duane Morris LLP February 14 2012
The DOJ Office of Special Counsel for Immigration Related Employment Practices( OSC) has issued guidance for employers who are going through an ICE I-9 audit or conducting their own I-9 audit.

State Dept. announces more forward movement in China-Mainland born and India EB-2 categories
Seyfarth Shaw LLP February 14 2012
The Department of State’s Visa Bulletin for March 2012 reveals that the China and India employment second preference cutoff date have continued to advance at a rapid rate in recent months.

DOS launches 90-day pilot program allowing online U.S. passport card applications
Seyfarth Shaw LLP February 14 2012
On January 24, 2012, the Department of State’s Office of Passport Services launched a 90-day pilot program allowing adult U.S. citizens living in the United States and Canada to apply for a passport card online.

USCIS announces several thousand EB-5 investor green cards issued so far in first quarter of FY 2012, releases latest stats
Seyfarth Shaw LLP February 14 2012
The Department of State issued 2,364 EB-5 employment-creation investor green cards between October 1, 2011, and mid-January 2012, U.S. Citizenship and Immigration Services (USCIS) announced at its quarterly EB-5 stakeholders meeting on January 23, 2012.

USCIS proposes EB-5 immigrant investor rule
Fredrikson & Byron PA February 14 2012
USCIS published a proposed rule on September 28, 2011, that would enable the agency to process certain EB-5 immigrant investor applications approved between 1995 and 1998.

DOJ’s Office of Special Counsel lists employer best practices during worksite enforcement audits
Seyfarth Shaw LLP February 14 2012
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) released the following do’s and don’ts for employers facing audits by U.S. Immigration and Customs Enforcement (ICE).

USCIS announces 58 countries whose nationals are eligible for H-2A and H-2B participation
Seyfarth Shaw LLP February 14 2012
U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS), in consultation with the Department of State, has identified 58 countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) programs for the coming year.

USCIS considers secondary review process for E-Verify final nonconfirmations
LawLogix Group February 14 2012
Today, the United States Citizenship and Immigration Services Verification Division held a stakeholder engagement to gather feedback on a formal “review process” for those employees who receive an erroneous final nonconfirmation from the E-Verify system.

USCIS announces ‘Entrepreneurs in Residence’ initiative, summit; discusses EB-5 enhancements
Fredrikson & Byron PA February 14 2012
As part of the Obama administration’s “Startup America” efforts to encourage high-skilled immigration into the U.S. under existing laws, USCIS Director Mayorkas announced the “Entrepreneurs in Residence” initiative to use “industry expertise to strengthen USCIS policies and practices surrounding immigrant investors, entrepreneurs and workers with specialized skills, knowledge, or abilities.”

Prevailing wages and PERM recruitment
Kramer Levin Naftalis & Frankel LLP February 14 2012
On December 1, 2011, the Board of Alien Labor Certification Appeals (BALCA) issued a unanimous decision in Matter of Karl Storz Endoscopy-America concerning the timing of recruitment steps during the PERM process.

Policy brief criticizes the USCIS for high denial rates for L-1 and H-1B petitions
Masuda Funai Eifert & Mitchell Ltd February 6 2012
The National Foundation for American Policy (NAFP) recently released a Policy Brief criticizing the U.S. Citizenship and Immigration Services (USCIS) for high denial rates in the L-1 and H-1B programs over the past four years, even though there have been no regulatory or legislative changes in these programs during this time.

DOS releases march 2012 Visa Bulletin – all of the employment-based immigrant visa categories continue to advance
Masuda Funai Eifert & Mitchell Ltd February 6 2012
The U.S. Department of State (DOS) recently released its March 2012 Visa Bulletin. All of the employment-based immigrant visa categories continue to advance.

Corporate Tax

Final regulations on judgments and settlements received because of physical injury
Baker Donelson Bearman Caldwell & Berkowitz PC February 20 2012
On January 23, 2012, final regulations (Final Regulations) were issued by the Internal Revenue Service (IRS) relating to the exclusion from gross income of amounts received due to personal physical injuries or physical sickness under Section 104 of the Internal Revenue Code of 1986, as amended (Code).

New opportunities for governmental plans to discuss important guidance with IRS and Treasury
Ice Miller LLP February 20 2012
The Internal Revenue Service (IRS) and Department of Treasury announced that town hall and consultation listening meetings are being held across the country to discuss important governmental plan guidance.

New “dividend equivalent” withholding regulations
King & Spalding LLP February 20 2012
New temporary and proposed Treasury regulations were issued on January 19, 2012 concerning withholding taxes imposed on certain “dividend equivalent” payments with respect to “specified notional principal contracts” (specified NPCs) and certain other transactions.

Alabama legislative update: taking care of business
Baker Donelson Bearman Caldwell & Berkowitz PC February 20 2012
The Alabama Legislature reconvened on Tuesday, February 14, opting to meet only two days instead of three.

Deficit reduction, tax expenditures and retirement plans
Leonard Street & Deinard February 18 2012
There has been a lot of talk in Washington about deficit reduction, tax expenditures and tax reform.

Key energy-related tax provisions in the 2013 budget proposal
McDermott Will & Emery February 17 2012
President Obama’s recently released budget proposal for the 2013 fiscal year contains energy-related tax provisions, including an extension of the Section 1603 grant in lieu of investment credits through 2012.

IRS releases 2011 Annual Report and 2012 Work Plan for Exempt Organizations
McGuireWoods LLP February 17 2012
On Feb. 8, 2012, the IRS Director of Exempt Organizations released the IRS’s 2011 Annual Report and 2012 Work Plan for Exempt Organizations.

IRS on your iPhone or Android device
Bryan Cave LLP February 17 2012
Last week the IRS announced the availability of IRS2Go 2.0, an expanded version of its smartphone app designed to provide taxpayers easier access to practical tools and information.

Industry groups sue California county over solar tax
Shook Hardy & Bacon LLP February 17 2012
Several groups representing solar power plant developers have sued Riverside County, California, challenging an annual fee on utility-scale solar projects that the county claims is necessary to defray the costs of impacts and services related to development of the facilities.

New changes to the NC property tax appeal process
Nexsen Pruet February 16 2012
According to ancient lore, the Mayans have long predicted 2012 might bring the end of the world.

Effective ways to use gift tax exemption
Haynes and Boone LLP February 16 2012
Most of our clients are aware that Congress dramatically increased the individual gift tax exemption from $1,000,000 to $5,120,000 in 2012, and that the exemption is scheduled to revert to $1,000,000 on January 1, 2013 unless Congress takes some action.

IRS releases covered compensation tables for 2012
Reinhart Boerner Van Deuren SC February 16 2012
The IRS has issued its two annual covered compensation tables for the 2012 plan year.

Parsonage allowance applies to a single home
Holland & Knight LLP February 16 2012
In Commissioner of IRS v. Driscoll, Case No. 11-12454 (11th Cir. Feb. 8, 2012), the Court of Appeals for the Eleventh Circuit reversed the U.S. Tax Court’s ruling allowing taxpayers to apply the “parsonage allowance” income exclusion of IRC § 107(2) to multiple houses. During the years 1996 through 1999, Phil Driscoll Ministries, Inc., a tax-exempt organization, paid to Philip A. Driscoll, an ordained minister, a parsonage allowance for the acquisition, care and maintenance of his principal residence and a lake house.

Proposed regulations issued for Foreign Account Tax Compliance Act (FATCA)
Baker & Hostetler LLP February 16 2012
On March 18, 2010, the U.S. Congress enacted the Foreign Account Tax Compliance Act ("FACTA") and added its provisions to the Internal Revenue Code (the "Code").

Some fiscal year plans now affected by PPACA's 2013 health FSA deferral limit
Reinhart Boerner Van Deuren SC February 16 2012
Beginning in or after "taxable years" on or after January 1, 2013, PPACA caps salary deferrals made to health Flexible Spending Accounts (health FSAs) at $2,500.

IRS business mileage rate unchanged for 2012
Reinhart Boerner Van Deuren SC February 16 2012
The IRS kept the business mileage rate at 55.5 cents per business mile driven, which is unchanged from its last revision that took effect July 1, 2011.

Timely topics
Holland & Knight LLP February 16 2012
At the request of Senate Finance Committee member Charles Grassley, the Commission on Accountability and Policy for Religious Organizations has formed to wrestle with tax-related policy questions of import to non-profit and religious institutions.

New foreign tax credit regulations issued
SNR Denton February 15 2012
On February 14, 2012, the US Treasury Department ("IRS") published in the Federal Register regulations dealing with two separate but related foreign tax credit issues.

IRS requests tribal comments on the application of the 'General Welfare' doctrine to tribal benefits
SNR Denton February 15 2012
The Internal Revenue Service, under Notice 2011-94, is requesting tribal comment on the application of the General Welfare doctrine to benefits provided under tribal benefit programs.

President Obama proposes to expand and make permanent zero capital gains on small business investments
Davis Wright Tremaine LLP February 15 2012
On January 31, 2012, President Obama sent a Startup America Legislative Agenda to Congress that included a proposal to “expand and make permanent zero capital gains on small business investments,” which is presumably a reference to making the 100% gain exclusion on Qualified Small Business Stock investments under Section 1202 of the Internal Revenue Code (which exclusion percentage expired as of December 31, 2011) permanent.

Obama's 2013 Budget proposes tax on excess reinsurance premiums to offshore affiliates again
Edwards Wildman Palmer LLP February 15 2012
President Obama’s recently released Budget of the U.S. Government for the Fiscal Year 2013 (the “Proposed 2013 Budget”) would disallow the current deduction for non-taxed reinsurance premiums paid to foreign-affiliates by U.S. insurance companies.

New guidance on distribution of medical loss ratio (MLR) rebates creates issues for group health plan sponsors
Alston & Bird LLP February 15 2012
Hey, I just got a rebate from my insurance company for my group health plan!

Washington rides the budget carousel once again
Porter Wright Morris & Arthur LLP February 15 2012
Consideration of our country’s annual budget has begun.

President Obama releases proposed fiscal year 2013 budget
SNR Denton February 14 2012
On Monday, February 13, 2011, US President Barack Obama released the Administration's proposed budget for the October 1, 2011 - September 30, 2012 fiscal year (the "President's FY 2013 Budget").

Key components of President Obama’s budget proposal
Barnes & Thornburg LLP February 14 2012
On Feb. 13, 2012, President Barack Obama released his $3.8 trillion fiscal year 2013 (FY13) budget, which over the next decade offers $4 trillion in deficit cuts, including $517 billion in mandatory savings.

Another unexpected surprise for international assignees: section 457a (no, not 409a!) of the U.S. tax code
Littler Mendelson February 14 2012
By now, most lawyers advising international companies on compensation packages for expatriates that include deferred compensation are familiar with section 409A of the United States Internal Revenue Code ("US tax code" or "Code").

Higher education addressed by President’s FY 2013 budget request
Arent Fox LLP February 14 2012
Today, President Obama released his fiscal year 2013 budget outlining the Administration’s spending priorities while also providing an alternative path to achieving mandated savings to the spending “sequester” required by this August’s debt limit law (PL 115-25).

Is tax reform headed to South Carolina?
Nexsen Pruet February 14 2012
This year could be a pivotal one for tax reform in South Carolina.

President’s proposed budget provides 4.1% increase for NNI: energy way up; defense way down
Foley & Lardner LLP February 14 2012
We have been reviewing the President’s budget proposals announced yesterday, February 13, 2012 (fiscal year 2013 President’s Budget).

HHS, DOL, and IRS issue faqs addressing automatic enrollment, employer shared responsibility, and waiting periods under the Affordable Care Act
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 14 2012
A handful of important Affordable Care Act provisions affecting employers and employer-sponsored group health plans take effect in or after 2014.

A win-win solution - using tax increment financing to pay for infrastructure improvements in areas impacted by oil and gas production from shale
Vorys Sater Seymour and Pease LLP February 13 2012
The development of oil and gas from Utica shale is one of the most significant opportunities for economic development in Ohio in the recent past.

Work Opportunity Tax Credit now available to qualified tax-exempt organizations that hire qualified veterans
Bryan Cave LLP February 13 2012
The VOW to Hire Heroes Act of 2011 provides an expanded Work Opportunity Tax Credit (WOTC) to businesses that hire eligible unemployed veterans and for the first time also makes the credit available to certain tax-exempt organizations.

Budget alarms market
Goodwin Procter LLP February 13 2012
President Obama’s $3.8 trillion fiscal 2013 budget alarmed the muni-market by proposing to reduce the value of tax-exempt interest and other tax preferences to 28%.

Fiscal Year 2013 Budget
Goodwin Procter LLP February 13 2012
This week, President Obama released his Budget for Fiscal Year 2013.

Anschutz Company
Alston & Bird LLP February 13 2012
Just before New Year’s Eve 2011 the Tenth Circuit affirmed the Tax Court’s ruling against the taxpayer Anschutz Company in a case involving a variable prepaid forward contract.

Tax
Patton Boggs LLP February 13 2012
On Tuesday, February 7, the Conference Committee held its fourth meeting on the payroll tax, unemployment insurance and Medicare physicians payment fix – or the so-called “doc fix” – legislation.

"Last chance" estate planning may end soon
Jeffer Mangels Butler & Mitchell LLP February 13 2012
Much has been written about the perfect storm of estate planning: the coincidence of low values, low interest rates, valuation discounts and the $5 million ($10 million for a married couple) gift and estate tax exemption.

Energy
Patton Boggs LLP February 13 2012
The Administration’s FY 2013 budget proposal — to be transmitted to Congress on Monday, 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.

Obama’s budget: govt still growing despite cuts
Goodwin Procter LLP February 13 2012
The$3.8 trillion election-year budget plan calls for stimulus-style spending on roads and schools and tax hikes on the wealthy to help pay the costs, but does little to reduce government or reign in Medicare and Medicaid.

This week in Washington - February 12, 2012
Patton Boggs LLP February 12 2012
Next Monday, President Obama will release his Fiscal Year 2013 budget proposal.

Legislation introduced
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
Congressmen Ed Markey (D-CA), Henry Waxman (D-CA), Steve Cohen (D-TN), Gerry Connolly (D-VA), and Peter Welch (D-VT) introduced legislation (H.R. 3900) February 3 to ensure that oil transported through the Keystone XL pipeline is used to reduce domestic dependence on Middle Eastern oil.

IRS proposes regulations to implement ACA medical device tax
Reed Smith LLP February 10 2012
On February 7, 2012, the Internal Revenue Service (IRS) published proposed regulations to implement the Affordable Care Act’s (ACA) 2.3% excise tax on medical devices, which applies to sales of taxable medical devices after December 31, 2012.

Minnesota weekly legislative update
Faegre Baker Daniels February 10 2012
It was a short week for the Legislature as members returned from precinct caucuses at noon on Wednesday, February 8.

New Jersey bill introduced to increase the New Jersey estate tax exemption to $1 million
Cole Schotz Meisel Forman & Leonard PA February 9 2012
In January, a bill was introduced in the New Jersey Legislature to increase the New Jersey estate tax exemption from $675,000 to $1 million.

Tennessee court rules that navy captain must pay use tax on personal aircraft upon reassignment to navy base in Tennessee
Bradley Arant Boult Cummings LLP February 6 2012
A Tennessee trial court issued a ruling on January 26, 2012, concluding that a Captain in the United States Navy was required to pay Tennessee use tax on his personal aircraft when he was reassigned to a naval base in Tennessee.

Tennessee Court of Appeals holds that Scholastic book clubs has nexus in Tennessee
Bradley Arant Boult Cummings LLP February 6 2012
The Tennessee Court of Appeals ruled on January 27, 2012 that Scholastic Book Clubs’ use of schools and teachers to facilitate book sales and deliveries in Tennessee establishes a sufficient presence in Tennessee requiring Scholastic to collect sales and use tax on its sales.

IRS announces third offshore voluntary disclosure program
Cole Schotz Meisel Forman & Leonard PA February 2 2012
The IRS announced a third voluntary disclosure program for offshore accounts recently.

NJ tax court finds gift in contemplation of death subject to inheritance tax
Cole Schotz Meisel Forman & Leonard PA February 1 2012
After meeting with a lawyer who advised him about divesting himself of assets so that he one day would be able to qualify for Medicaid, Peter Muscle, age 88, made a gift to his girlfriend of PSE&G stock having a value just over $1 million.

GOP tax reform debated
Arnall Golden & Gregory LLP January 30 2012
A debate over tax reform was on the table last weekend at the annual House Republican retreat in Baltimore.

Changes in tax collector’s role in city taxes
Arnall Golden & Gregory LLP January 30 2012
A bill by Representative Lynne Riley removes the distinction in counties with 50,000 land parcels when it comes to tax collectors collecting municipal taxes.

Derivatives

CFTC amends compliance and registration requirements for CPOs
Kaye Scholer LLP February 17 2012
The CFTC has rescinded the exemption from registration that Rule 4.13(a)(4) provided to commodity pool operators and commodity trading advisors whose investors are qualified purchasers or accredited investors.

CFTC tightens commodity pool operator exemption for investment companies
Morrison & Foerster LLP February 16 2012
By a vote of 4-1, on February 9, 2012, the Commodity Futures Trading Commission (the “CFTC”) amended Rule 4.5 under the Commodity Exchange Act to sharply limit the ability of registered investment companies that use derivatives from relying on an exclusion from the definition of a commodity pool operator (“CPO”).

CFTC business conduct rules will affect most swap users
SNR Denton February 16 2012
The US Commodity Futures Trading Commission ("CFTC") has adopted final business conduct standards ("Final Rules") for swap dealers ("SDs") and major swap participants ("MSPs"), as required by Section 731 of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank").

New CFTC CPO/CTA rules may impact family offices
Sidley Austin LLP February 15 2012
On February 9, 2012, the Commodity Futures Trading Commission (“CFTC”) issued final rules (the “Final Rules”) eliminating a number of exclusions and exemptions relied on by commodity pool operators (“CPOs”) and commodity trading advisers (“CTAs”) and increasing the reporting requirements for registered CTAs and CPOs.

CFTC adopts rule changes and rescinds Rule 4.13(a)(4)
Dechert LLP February 15 2012
The U.S. Commodity Futures Trading Commission (“CFTC”) has adopted a set of rule changes designed to assist the CFTC in overseeing the commodities and derivatives markets and assessing the market risk associated with pooled investment vehicles under its jurisdiction.

CFTC eliminates and revises Rule 4.13 registration exemptions and limits Rule 4.5 exclusion
Winston & Strawn LLP February 15 2012
On February 9, 2012, the Commodity Futures Trading Commission (the “CFTC”) issued final rules (the “Final Rules”) that, among other things, rescinded certain relief from registration as a commodity pool operator (“CPO”) with the CFTC.

CFTC releases final rules amending registration and compliance obligations for CPOs and CTAs
Curtis Mallet-Prevost Colt & Mosle LLP February 15 2012
On February 9, 2012, the U.S. Commodity Futures Trading Commission released final rules amending the registration and compliance obligations for commodity pool operators and commodity trading advisors.

CFTC issues final rule on CPO/CTA registration and compliance regulations
Orrick Herrington & Sutcliffe LLP February 15 2012
On February 9th, the CFTC approved certain rule changes intended to increase transparency to the CFTC of commodity pool operators (“CPOs”) and commodity trading advisors (“CTAs”) active in the futures and swaps markets.

Dodd-Frank Act implementation update
Orrick Herrington & Sutcliffe LLP February 15 2012
Title VII of the Dodd-Frank financial reform, titled the “Wall Street Transparency and Accountability Act of 2010” (“Title VII”), was enacted on July 21, 2010.

CFTC adopts final business conduct standards for swap dealers and major swap participants
Katten Muchin Rosenman LLP February 15 2012
On January 11, the Commodity Futures Trading Commission approved final rules (the Final Rules) under Section 4s(h) of the Commodity Exchange Act (CEA) (added by Section 731 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act)) that set forth general antifraud prohibitions and establish detailed business conduct standards that must be observed by CFTC-registered swap dealers (Swap Dealers or SDs) and major swap participants (MSPs) (together, Swap Entities) when they are entering into swaps with counterparties other than other Swap Entities (End Users).

CFTC issues final rule amending registration exemptions for registered investment companies and proposes to harmonize compliance obligations for registered investment companies required to register as commodity pool operators
Goodwin Procter LLP February 14 2012
The CFTC adopted changes to Part 4 of its regulations involving registration and compliance obligations for commodity pool operators (“CPOs”) and commodity trading advisors (“CTAs”).

Commodity Futures Trading Commission adopts final rules limiting exclusion from registration for registered investment companies
Ropes & Gray LLP February 14 2012
On February 9, 2012, the Commodity Futures Trading Commission (the “CFTC”) adopted amendments to Rule 4.5 under the Commodity Exchange Act, limiting the availability of the exclusion from the definition of commodity pool operator (“CPO”) relied upon by many registered investment companies.

CFTC adopts final rules amending CPO/CTA registration and compliance obligations
Sidley Austin LLP February 14 2012
On February 9, 2012, the Commodity Futures Trading Commission (“CFTC”) issued final rules (the “Final Rules”) eliminating a number of exclusions and exemptions relied on by commodity pool operators (“CPOs”) and commodity trading advisors (“CTAs”) in connection with many privately offered funds and investment companies registered under the Investment Company Act of 1940 (“RICs”).

CFTC rescinds QEP exemption from commodity pool operator registration
Goodwin Procter LLP February 14 2012
The CFTC issued a final rule eliminating the so-called “QEP exemption” from registration with the CFTC as a commodity pool operator (a “CPO”) under CFTC Rule 4.13(a)(4).

CFTC adopts significant changes to CPO and CTA registration and compliance requirements
Katten Muchin Rosenman LLP February 14 2012
On February 9, the Commodity Futures Trading Commission adopted by a vote of 4 to 1 (Commissioner Sommers dissenting) final rules amending its Part 4 regulations governing commodity pool operators (CPOs) and commodity trading advisors (CTAs).

CFTC proposes Volcker Rule regulations
Goodwin Procter LLP February 14 2012
The CFTC approved a proposed rule implementing Section 619 of the Dodd-Frank Act, commonly referred to as the “Volcker Rule,” which generally prohibits any banking entity from engaging in proprietary trading and from sponsoring or acquiring an ownership interest in hedge funds, private equity funds, and commodity pools, subject to several exemptions that permit banking entities to engage in certain underwriting, market-making, and risk mitigating hedging activities.

CFTC proposed amendments to investment company reporting requirements
Orrick Herrington & Sutcliffe LLP February 13 2012
On February 9, the CFTC proposed to amend reporting requirements for investment companies registered under the Investment Company Act of 1940, the advisers of which would be required to register with the CFTC as commodity pool operators pursuant to amendments adopted by the CFTC to Section 4.5.

CFTC rescinds and revises hedge fund registration exemptions and adds reporting requirements
Ropes & Gray LLP February 13 2012
The Commodity Futures Trading Commission recently announced final rules rescinding or revising registration exemptions for private funds, and revising the exclusion for registered investment companies.

CFTC eliminates key exemption from registration as a commodity pool operator
Leonard Street & Deinard February 13 2012
The CFTC has eliminated the exemption from registration as a commodity pool operator, or CPO, set forth in CFTC Rule 4.13(a)(4).

CFTC amendments to registration and compliance obligations
Orrick Herrington & Sutcliffe LLP February 13 2012
On February 9, pursuant to Title IV and Title VII of the Dodd-Frank Act, the CFTC adopted final amendments to Part 4 of the CFTC's regulations that: (i) rescind the exemption from registration provided in Section 4.13(a)(4); (ii) rescind relief from the certification requirement for annual reports provided to operators of certain pools offered only to qualified eligible persons under Section 4.7(b)(3); (iii) modify the criteria for claiming relief under Section 4.5; and (iv) require annual filing of notices claiming exemptive relief under a number of sections of the CFTC's regulations.

CFTC considers concept release on high-frequency trading
Winston & Strawn LLP February 6 2012
On January 31st, Bloomberg reported the CFTC may issue a concept release on high-frequency trading.

MF Global's missing money
Winston & Strawn LLP February 6 2012
On January 31st, the New York Times' DealBook reported that the CFTC has located 90 percent of MF Global's missing customer funds.

MF Global sparks regulatory review
Winston & Strawn LLP February 6 2012
On February 1st, Reuters reported that MF Global's collapse has led CFTC Chairman Gary Gensler to call for a review of how the agency oversees futures commission merchants.

Designs and trade secrets

Click wrap? Forget it: federal court finds that violation of online clickwrap agreement not enough to constitute trade secret misappropriation under California law
Seyfarth Shaw LLP February 17 2012
On February 13, 2012, a federal judge in Los Angeles, California dismissed a remote-access software company’s claim that one of its customers violated the California Trade Secrets Act, Cal. Civ. Code § 3426.1 et seq., by downloading a trial version of plaintiff’s Mac-environment remote-access software and “reverse engineering” its own program.

Product configuration trade dress claims can be costly
Venable LLP February 16 2012
Two recent federal court rulings rejecting the protectability of alleged trade dress in product configurations should make plaintiffs think twice before pursuing such claims.

Employee Benefits & Pensions

Final summary of benefits and coverage rules – a rocky compliance road for employer plans
Kilpatrick Townsend & Stockton LLP February 20 2012
On February 14th the Departments of Treasury, Labor and Health and Human Services (the Departments) issued final regulations regarding the Summary of Benefits and Coverage (SBC) Rules under the Affordable Care Act.

Essential health benefits – working toward a possible solution
Kilpatrick Townsend & Stockton LLP February 20 2012
Last month our firm submitted comments on behalf of two clients concerning the proposal for essential health benefits (EHB).

Agencies issue final rules on summary of benefits for health plans and insurance coverage under PPACA
Katten Muchin Rosenman LLP February 17 2012
Under final regulations issued February 9, group health plans must issue a summary of benefits and coverage and a uniform glossary.

Corporate spin-off and a new retirement plan did not violate employees’ rights under ERISA: Nauman v. Abbott Laboratories
Williams Mullen February 16 2012
The U. S. Court of Appeals for the Seventh Circuit has affirmed a trial judgment against a class of former employees of Abbott Laboratories (“Abbott”), ruling against their claim that Abbott used a corporate spin-off process to interfere with the employees’ rights to pension benefits under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and breached its fiduciary duties by failing to disclose the impact of the spin-off on the former employees’ pension benefits.

Summary of benefits and coverage disclosure requirements
McDermott Will & Emery February 16 2012
Recently issued final regulations and related guidance clarify the requirement under the Patient Protection and Affordable Care Act that group health plans and health insurance issuers provide a summary of benefits and coverage and a uniform glossary.

March 30 deadline for ERRP full-replacement claims list submission
Reinhart Boerner Van Deuren SC February 16 2012
The Department of Health and Human Services (HHS) is requiring plan sponsors who have received reimbursements under the Early Retiree Reinsurance Program (ERRP) to submit a full-replacement claims list by March 30, 2012 to support the reimbursements they have received.

IRS releases covered compensation tables for 2012
Reinhart Boerner Van Deuren SC February 16 2012
The IRS has issued its two annual covered compensation tables for the 2012 plan year.

Final rules issued on retirement plan fee disclosures-compliance required by July 1
Pillsbury Winthrop Shaw Pittman LLP February 16 2012
On February 2, the Department of Labor (“DOL”) released the final regulations under Section 408(b)(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).

HHS issues interim final regulations adopting HIPAA transaction standards for health care Electronic Funds Transfer (EFT) and remittance advice
Reinhart Boerner Van Deuren SC February 16 2012
HHS issued interim final regulations establishing standards for Electronic Funds Transfer (EFT) as required by section 1104 of PPACA.

Final extensions provided for retirement plan fee disclosures and PPACA Summary of Benefits Coverage
Epstein Becker Green February 16 2012
On February 2, 2012, the U.S. Department of Labor issued final regulations under Section 408(b)(2) of ERISA.

Second Circuit holds that Dukes prohibits certification of ERISA claim under Rule 23(b)(2)
Littler Mendelson February 16 2012
In Nationwide Life Insurance Co. v. Haddock, No. 10-4237 (2d Cir. February 6, 2012), the Second Circuit reversed a district court order granting class certification.

Meeting your fiduciary duties under the new fee disclosure regulations
Reinhart Boerner Van Deuren SC February 16 2012
The Employee Retirement Income Security Act of 1974 (ERISA) prohibits any contract or arrangement with an employee benefit plan unless the services, the contract and the compensation are reasonable and necessary.

PBGC issues first quarter interest rates for 2012
Reinhart Boerner Van Deuren SC February 16 2012
The Pension Benefit Guaranty Corporation (PBGC) released the interest rates it will charge for the calendar quarter beginning January 1, 2012 and ending March 31, 2012.

Agencies issue final rule on contraceptive coverage
Littler Mendelson February 16 2012
The Departments of Labor, Health and Human Services, and the Internal Revenue Service have issued a final rule that adopts without change interim final regulations that exempt group health plans and group health insurance coverage sponsored by certain religious employers from having to cover certain preventive health services under provisions of the Patient Protection and Affordable Care Act.

EBSA issues HIPAA compliance Form M-1 for MEWAs
Reinhart Boerner Van Deuren SC February 16 2012
The Department of Labor's (DOL) Employee Benefits Security Administration (EBSA) has issued Form M-1 for 2011.

Automatic enrolment
Mayer Brown LLP February 16 2012
As the October 2012 start of the automatic enrolment implementation process approaches, many employers are planning ahead on the design of future pension provision.

Fiduciary found liable for not timely honoring rollover request
Fox Rothschild LLP February 15 2012
Plan fiduciaries are frequently faced with difficult decisions regarding plan administration and it is important for them to know not only what the plan says, but also what the potential penalties are for not following the plan.

New DOL rule allows retirement plan administrators to provide investment advice
Ropes & Gray LLP February 15 2012
Under a new Department of Labor (“DOL”) rule, sponsors and fiduciaries of participant-directed retirement plans, such as 401(k)s and IRAs, may provide certain investment advice to plan participants.

Employee benefit plan alert
Taylor English Duma LLP February 15 2012
The DOL, the IRS and HHS were active in the first two weeks of February.

New requirement to provide summary of benefits and coverage
Fennemore Craig February 15 2012
The Patient Protection and Affordable Care Act requires group health plans and health insurance issuers to provide a new four page summary of benefits and coverage that “accurately describes the benefits and coverage under the applicable plan or coverage”.

ITV appeals UK Pensions Regulator’s order to provide financial support to Box Clever Group Pension Scheme
Latham & Watkins LLP February 15 2012
ITV launched an appeal against a decision of the UK Pensions Regulator’s Determination Panel (the Panel) compelling ITV to provide financial support to the Box Clever Group Pension Scheme (the Plan) which had a deficit of more than £62 million.

Washington rides the budget carousel once again
Porter Wright Morris & Arthur LLP February 15 2012
Consideration of our country’s annual budget has begun.

HHS, DOL, and IRS issue FAQs addressing automatic enrollment, employer shared responsibility and waiting periods under the ACA
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 15 2012
The Affordable Care Act will require major changes to the design, maintenance, and operation of employer-sponsored (and other) group health plans.

Five common 409A design errors: #1 employment claims releases
Bryan Cave LLP February 15 2012
Over the next several weeks, we will be writing about five common Code Section 409A design errors and corrections.

Ninth Circuit holds participant status no longer a subject matter jurisdiction issue (or does it?)
Seyfarth Shaw LLP February 15 2012
Is an ERISA plaintiff’s lack of participant standing a question of subject matter jurisdiction that can be raised at any time or simply a defense to the claim that can be waived if not timely raised?

Final regulations issued regarding summary of benefits and coverage explanation
Ford & Harrison LLP February 14 2012
The Departments of Treasury, Labor, and Health and Human Services (HHS) have published final regulations implementing the requirement imposed by the 2010 Patient Protection and Affordable Care Act (PPACA) that group health plans and health insurance issuers provide an HHS-approved "easy to understand" summary of benefits and coverage explanation (SBC) and uniform glossary of terms prior to enrollment or re-enrollment or prior to delivery of the certificate of coverage.

Functions of the health care exchanges for 2014
Faegre Baker Daniels February 14 2012
For employers to understand the big picture, our earlier posts described the government subsidies, individual mandates and employer mandates.

New PPACA benefit summary rules clarified
Ogletree Deakins February 14 2012
If their open enrollment periods start before September 23, 2012, health insurers and employers that sponsor health plans will not have to provide new summaries of benefits and coverage, or "SBCs," to new enrollees and existing health plan participants later this year, under new final regulations implementing the 2010 health care reform law.

Lifetime income choices: it’s all about pension risk management and allocation of risk
Porter Wright Morris & Arthur LLP February 14 2012
The Treasury has announced proposed regulations and rulings regarding lifetime income choices.

The final 408(b)(2) regulation: impact on RIAs
Drinker Biddle & Reath LLP February 14 2012
This is the first in our series of bulletins on the impact of the Department of Labor’s (DOL) Final Regulation on service provider disclosure under ERISA Section 408(b)(2).

DOL issues final regulation regarding service provider fee disclosure
Goodwin Procter LLP February 14 2012
The Department of Labor (“DOL”) issued a final regulation (the “Final Regulation”) under Section 408(b)(2) of the Employee Retirement Income Security Act of 1974, as amended.

Plan fiduciaries and final guidance on disclosure of fee information
Vedder Price PC February 13 2012
Fee disclosure action time has arrived.

Rule delays effective date, modifies requirement
Seyfarth Shaw LLP February 13 2012
The Affordable Care Act requires group health plan sponsors (employers and insurers) to provide participants with a short Summary of Benefits and Coverage for each benefit package offered.

A most unusual QDRO decision
Leonard Street & Deinard February 11 2012
Most qualified domestic relations order cases are fights that affect the formerly married spouses and the plan sponsor or plan administrator.

Final fee disclosure regulation: additional hurdles for service providers and plan fiduciaries
Jones Day February 10 2012
On February 2, 2012, the Department of Labor released the much-anticipated final regulation on service provider fee disclosures.

Second Circuit vacates class certification order in long-running ERISA retirement plan "revenue sharing" case
Jorden Burt LLP February 9 2012
This week, the United States Court of Appeals for the Second Circuit vacated a Connecticut federal district court order certifying a class of 401(k) plan trustees in the long-running Haddock

Treasury Department releases annuity proposals
Winston & Strawn LLP February 6 2012
On February 2nd, the Treasury Department announced two proposals aimed at increasing retirement plan options.

Labor Department issues disclosure rule for service providers to pension and 401(k) plans
Winston & Strawn LLP February 6 2012
The Labor Department's Employee Benefits Security Administration issued a final rule that will require certain service providers to pension and 401(k) plans to disclose information about the service provider's compensation and potential conflicts of interest.

Employment & Labor

The new California Wage Theft Protection Act is now effective
Dechert LLP February 21 2012
California enacted the Wage Theft Protection Act (AB 469) (CAWTPA), effective January 1, 2012, amending several sections of the state’s Labor Code, broadening pay notice requirements, and increasing penalties for violations of wage-related statutes and regulations.

NLRB’s general counsel again weighs in on social media in the workplace
Dechert LLP February 21 2012
On January 24, 2011, the General Counsel of the National Labor Relations Board (NLRB or the Board) released a second report discussing social media cases decided under Section 7 of the National Labor Relations Act (NLRA).

New Jersey creates new employee notice requirement
Dechert LLP February 21 2012
New Jersey now requires employers in the state to post and distribute to employees a New Jersey Department of Labor and Workforce Development (NJDOL) notice concerning records employers must keep under several New Jersey laws pertaining to wages, benefits, taxes and other contributions and assessments (i.e., New Jersey’s Wage Payment Law, Wage and Hour Law, Prevailing Wage Act, Unemployment Compensation Law, Temporary Disability Benefits Law, Family Leave Insurance Benefits Law, Workers’ Compensation Law, and Gross Income Tax Act.).

“At will” employment remains the rule, not the exception, in Pennsylvania
Dechert LLP February 21 2012
In Edwards v. Geisinger Clinic, No. 11-1528, 2012 WL 171967 (3rd Cir. Jan. 23, 2012), the U.S. Court of Appeals for the Third Circuit rejected an employee’s assertions that his previous employer, who terminated his employment, promised that he would be employed for at least three years.

Your position at the bargaining table may open the door to a broad request for information from the union
Foley & Lardner LLP February 20 2012
Unions have a broad right to request information related to grievances or to the collective bargaining process.

OSHA finally releases its watered-down Fall 2011 regulatory agenda
Epstein Becker Green February 20 2012
At the end of January 2012, OSHA finally released its Fall 2011 regulatory agenda, which is intended to be an overview of what OSHA plans to accomplish in the next few months.

DOL's "updated" FMLA forms list new 2015 expiration date
Bond Schoeneck & King February 20 2012
The U.S. Department of Labor ("DOL") recently issued "updated" Family and Medical Leave Act ("FMLA") model notices and medical certification forms.

The latest on NLRB Facebook firings – unlawful terminations abound
Fredrikson & Byron PA February 20 2012
We promised a series of posts discussing the National Labor Relations Board’s most recent report on social media cases, so here you go!

Waiting on Nosal...combating data theft under the Computer Fraud and Abuse Act in the Ninth Circuit
Seyfarth Shaw LLP February 20 2012
A recent California federal court decision has permitted an employer to pursue a former employee for alleged violations of the employer's computer usage policies under the Computer Fraud and Abuse Act (“CFAA”), while an en banc Ninth Circuit panel considers the validity of such claims.

Hotel operators and managers remain vulnerable to wage and hour class actions
Epstein Becker Green February 20 2012
A hotel management company was recently hit with a putative class action in federal court for allegedly failing to compensate hotel employees overtime pay at one and one-half times their regular rate of pay for all hours worked over 40 hours in a workweek.

EEOC issues final GINA recordkeeping rules
Foley & Lardner LLP February 20 2012
In our January 16, 2012 edition of Legal News: Employment Law Update, we discussed companies’ numerous obligations with respect to employee recordkeeping.

Stephen Colbert takes FMLA leave to care for mom; will his "key employee" status under the FMLA deny his return to "The Colbert Report"?
Franczek Radelet PC February 19 2012
According to Forbes and other news sources, Stephen Colbert has taken a leave of absence from his late-night comedy show, "The Colbert Report," to attend to his ailing 91 year-old mother.

House and Senate introduce resolutions condemning NLRB election rule
Littler Mendelson February 17 2012
On February 16, 2012, Republican members of both the House and Senate introduced resolutions (H.J. Res. 103; S.J. Res. 36) formally disapproving of the National Labor Relations Board’s recent final rule that dramatically changes representation election procedures.

EWOC sues alleging pregnancy discrimination -- one day after its meeting to discuss this subject
Fox Rothschild LLP February 17 2012
We noted as recently as yesterday that “the times they are a changin’” – women make up almost one half of the workforce, the number of pregnancy discrimination charges is rising rapidly, and at the EEOC meeting this week experts have strongly argued that the EEOC should be more proactive in directing employers to accommodate women “who require adjustments to work rules as a result of pregnancy or childbirth.”

EEOC publishes guidance on whether high school diploma requirement violates ADA
Ford & Harrison LLP February 17 2012
The Equal Employment Opportunity Commission (EEOC) has published additional guidance addressing whether an employer violates the Americans with Disabilities Act (ADA) by requiring a high school diploma for a job.

Can we suspend an exempt employee without pay?
Franczek Radelet PC February 17 2012
One of our salaried exempt employees appears to have violated our sexual harassment policy.

Leave for immediate family members of military personnel injured or killed in active service
Briggs and Morgan February 17 2012
Under Minnesota law, an employer with one or more employees must grant up to ten working days of a leave of absence without pay to an employee whose immediate family member has been injured or killed while engaged in active service as a member of the United States armed forces.

California district court holds that motor carrier exemption preempts meal and rest period claims in trucking industry
Epstein Becker Green February 17 2012
Plaintiffs seeking to bring state law wage-hour class actions against employers in the trucking industry have run into a significant road block in California.

Congress seeks to block NLRB’s election rule changes
Greenberg Traurig LLP February 17 2012
We’ve been following the NLRB’s controversial changes to union election case procedures.

New jersey legislature attempting to end owner operators and deputize labor unions
Ford & Harrison LLP February 17 2012
Labor organizations are aggressively attempting to eliminate owner-operators as independent contractors on a national level.

Accommodating religion in the workplace is a balancing act
Dinsmore & Shohl LLP February 17 2012
Work-related meetings sometimes include a meal and begin with an invocation -- this usually involves a brief prayer of thanks.

Appellate division opinion highlights perils of delayed temporary disability payments
LeClairRyan February 17 2012
On February 15, 2012, the Appellate Division of the Superior Court of New Jersey issued an unpublished decision in Qureshi v. Cintas Corp., A2703-10T2, that could impact the granting of attorneys' fees in cases where the respondent fails to pay the benefits ordered by a judge of compensation in a timely manner.

Dukes is no hazard: eight months on, district courts have been largely unmoved by Wal-Mart Stores, Inc. v. Dukes
Quinn Emanuel Urquhart & Sullivan LLP February 17 2012
In June 2011, the Supreme Court handed down its decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), provoking cries that the case was the “death knell” of the nationwide class action.

Blizzard of new guidance: final SBC rules, new FAQs on pay or play and changes to contraceptive rules
Quarles & Brady LLP February 17 2012
Last week federal regulators issued a mid-winter flurry of new employee benefits guidance and updates, with even President Obama personally issuing some of the guidance.

EEOC hearing examines discrimination against pregnant women and caregivers
Littler Mendelson February 17 2012
Three separate panels of witnesses testified at the February 15 Equal Employment Opportunity Commission (EEOC) meeting to discuss the laws that govern pregnancy- and caregiver-based employment discrimination, current charge statistics on these types of claims, and how to help employers comply with the many laws involved.

Mandatory flu vaccinations – healthcare employers stuck in the middle
Littler Mendelson February 17 2012
As in so many other situations, healthcare employers are faced with a number of differing and potentially conflicting government directives and public policy pressures when it comes to mandatory vaccination programs for their employees.

Court nixes disability claim based on inability to work overtime
Fox Rothschild LLP February 17 2012
An employee tells you that he has medical restrictions.

Are remedies available to working moms who experience "lactation discrimination"?
Stoel Rives LLP February 17 2012
For many new moms returning to work after the birth of a child, pumping breast-milk is considered to be a necessary evil.

Wisconsin Federal District Court rules that internal strategic safety analysis done at direction of in-house counsel is not protected by attorney-client privilege
Seyfarth Shaw LLP February 16 2012
On February 8, 2012, the E.D. Wisconsin issued a decision in Solis v. Milk Specialties, Case No. 11-MC-72, finding that an internal “five year strat plan” for combustible dust hazards and an associated “Dust Report” were not privileged and therefore must be produced to the Occupational Safety and Health Administration (OSHA) in an ongoing OSHA dust hazard inspection. Milk Specialties had been inspected by OSHA and cited for dust hazards.

The mystery of the one-armed barista
Fox Rothschild LLP February 16 2012
In my opinion (notice I omitted the adjective “humble”), the most challenging area of discrimination law involves accommodations for disabled employees and applicants.

Ohio Governor creates Office of Workforce Transformation and Executive Workforce Board
Bricker & Eckler LLP February 16 2012
Ohio Governor John Kasich recently signed Executive Order 2012-02K, creating the Governor’s Office of Workforce Transformation (OWT) and the Governor’s Executive Workforce Board, in addition to appointing an executive director to oversee the OWT.

Another federal court blasts overbroad complaint, dismisses FLSA collective action against hospital
Littler Mendelson February 16 2012
In yet another example of courts’ increasing hostility toward broad boilerplate complaints in Fair Labor Standards Act (FLSA) collective actions, in Sampson v. Medisys Health Network a Magistrate Judge in the Eastern District of New York recommended dismissal with prejudice of an FLSA collective action.

Preventive care mandate update: burden shifts from religious organizations to insurers; unanswered questions remain
Baker & Hostetler LLP February 16 2012
On February 10, 2012, President Obama announced a policy change intended to address the concerns of many religiously affiliated organizations over the preventive care mandate that requires nongrandfathered group health plans to provide FDAapproved contraceptive and sterilization procedures to women with no cost sharing.

First Circuit limits SOX whistleblower protection to employees of public companies
Epstein Becker Green February 16 2012
Confronting an issue of first impression, the U.S. Court of Appeals for the First Circuit recently held that the “whistleblower” protections of the Sarbanes-Oxley Act of 2002 cover only employees of public companies, and do not extend to the employees of a public company’s contractors or subcontractors which are themselves private companies.

Employers beware - the crackdown continues
Weintraub Genshlea Chediak Law Corporation February 16 2012
In my November 4, 2011 post, I discussed a new California law (Labor Code § 226.8) that imposes serious monetary fines and other sanctions against those who willfully misclassify workers as “independent contractors” rather than “employees.”

US Supreme Court confirms that ministers cannot bring discrimination claims
Squire Sanders February 16 2012
The First Amendment to the United States Constitution provides the freedom to engage in religious activity without interference from the government.

A win for religious-based employers: Supreme Court recognizes "ministerial exception" to employment discrimination
Patterson Belknap Webb & Tyler LLP February 16 2012
Last month, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the U.S. Supreme Court recognized a "ministerial exception" to employment discrimination laws, in what is likely to be a seminal case for religious-based employers.

California becomes latest state to join forces with the DOL to stop employee misclassification
Blank Rome LLP February 16 2012
California has become the twelfth state to partner with the U.S. Department of Labor (“DOL”) to combat worker misclassification.

How much for that Twitter account in the window?
Manatt Phelps & Phillips LLP February 16 2012
A new lawsuit has companies wondering: Who owns a Twitter account?

Religious school teacher qualifies as a “minister” barred from bringing an employment discrimination lawsuit
Holland & Knight LLP February 16 2012
In Hosanna-Tabor Evangelical Lutheran Church and Sch. v. Equal Employment Comm’n, Case No. 10-553 (Jan. 11, 2011), the U.S. Supreme Court unanimously confirmed the existence of a “ministerial exception” — grounded in both the Free Exercise Clause and Establishment Clause of the First Amendment — that operates as an affirmative defense to bar a “minister” from bringing an employment discrimination lawsuit against a religious institution.

NLRB spotlights social media traps for union and non-union employers
Holland & Knight LLP February 16 2012
In January 2012, the acting general counsel of the National Labor Relations Board (NLRB), Lafe Solomon, issued the Board’s second report in a year on the “hot topic” of recent cases presenting labor relations issues in the context of social media such as Facebook and Twitter.

Unsuccessful attorney's lien claim does not collaterally estop breach of contract claim
Kelley Drye & Warren LLP February 16 2012
The Kanoski & Associates law firm hired Lawrence Hess in 2001 pursuant to a written employment agreement.

Lactation in the workplace and the EEOC - changing times
Fox Rothschild LLP February 16 2012
"Lactation is not pregnancy, childbirth, or a related medical condition," held a Texas federal judge recently in denying the Title VII claim of a woman who alleged that she was fired for seeking to pump breast milk while on the job.

Unpaid internships — too good to be true?
Godfrey & Kahn February 16 2012
Unpaid internships are all the rage.

Religious institutions in the news
Holland & Knight LLP February 16 2012
The Obama administration announced that it will not broaden the religious exemption in rules that would require employers to provide contraception coverage to employees.

EEOC issues guidance on the interplay between educational requirements and the ADA
Littler Mendelson February 16 2012
After an informal discussion letter the Equal Employment Opportunity Commission (EEOC) issued in November 2011 raised more questions than it answered, the agency decided to release additional guidance on when an employer potentially violates the Americans with Disabilities Act (ADA) by requiring employees to have a high school diploma.

Two Ohio district court opinions highlight an employee's obligation to provide proper medical certification to qualify for FMLA leave
Porter Wright Morris & Arthur LLP February 16 2012
The FMLA is a confusing topic for employers and human resource professionals.

NLRB finds that prohibiting class actions in employment contracts violates federal labor law
Jorden Burt LLP February 16 2012
The National Labor Relations Board (“NLRB”) affirmed an administrative law judge’s decision that an employer violated the National Labor Relations Act (“NLRA”) by requiring covered employees, as a condition of employment, to sign an agreement precluding them from filing class actions addressing their wages, hours or other working conditions in any forum, arbitral and judicial.

Ninth Circuit declines to enforce contractual choice of law provision and applies California’s more pro-plaintiff employment law
Seyfarth Shaw LLP February 16 2012
In Ruiz v. Affinity Logistics Corporation, the Ninth Circuit Court of Appeals held on February 8, 2012 that a contractual choice of law provision was unenforceable as to whether furniture truck drivers were independent contractors or employees.

Updates regarding automatic enrollment, employer shared responsibility, and waiting periods in the Affordable Care Act; additional feedback solicited
Ropes & Gray LLP February 16 2012
On February 9, 2012, the U.S. Departments of Labor, Health and Human Services, and Treasury (the Departments) issued FAQs on open questions under the Patient Protection and Affordable Care Act.

Court rejects novel EEOC claim: breast-pumping is not protected under Title VII
Seyfarth Shaw LLP February 16 2012
In the recent decision in EEOC v. Houston Funding II, Ltd., et al., Case No. H-11-2442 (S.D. Tex. Feb. 2, 2012), the U.S. District Court for the Southern District of Texas rejected a claim filed by the EEOC alleging that an employer unlawfully discriminated against a worker on the basis of her sex because she wanted to express breast-milk while at work.

Are interns creating wage and hour liability for your company?
Epstein Becker Green February 15 2012
On February 1, 2012, a former intern of Hearst Corp.’s Harper’s Bazaar filed a purported class action alleging that the company violated the Fair Labor Standards Act (“FLSA”) and applicable state law by failing to pay minimum wage and overtime pay to her and the other interns.

FMLA protects pre-eligibility request for post-eligibility FMLA leave
Alston & Bird LLP February 15 2012
A recent decision by the Eleventh Circuit Court of Appeals reinforces that employers covered by the Family and Medical Leave Act (FMLA) should not entirely ignore the FMLA when an employee who has not reached her anniversary date provides notice of a need for future FMLA leave.

Medical monitoring complaint held insufficient
Dechert LLP February 15 2012
A federal trial court last week dismissed a medical monitoring claim by an employee of a pipe cleaning company pursuant to Twombly.

California and U.S. Departments of Labor join forces to fight worker misclassification
Fenwick & West LLP February 15 2012
Earlier this month, as part of its Misclassification Initiative, the U.S. Department of Labor's Wage and Hour Division entered into a memorandum of understanding ("MOU") with the California Labor Commissioner providing for cooperation toward new efforts to reduce worker misclassification – in particular misclassifying employees as independent contractors.

Top 10 essentials to include in an employee handbook
Dinsmore & Shohl LLP February 15 2012
One of the most important attributes of any successful business is a relationship built on trust between the employer and the employee.

California and DOL join forces
Fox Rothschild LLP February 15 2012
Last week, California and The U.S. Department of Labor agreed to work together to go after employers who misclassify employees as independent contractors.

Give tipped employees proper notice if taking tip credit
Fox Rothschild LLP February 15 2012
It is imperative that employers comply with all of the Fair Labor Standards Act’s requirements, and be able to provide proof of adherence to protect themselves in court.

Ohio Bureau of Workers' Compensation begins accepting applications for Workplace Wellness Grant Program
Roetzel & Andress February 15 2012
The Ohio Bureau of Workers' Compensation (BWC) is now accepting applications for its new Workplace Wellness Grant Program.

Hiring unpaid summer interns? Keep these important tips in mind
Porter Wright Morris & Arthur LLP February 15 2012
Many employers consider hiring interns during the summers or school year to help students gain experience or learn about a certain industry or career.

Rule 23(c)(1)(b) requires precise class definition and list of all claims and defenses
Kelley Drye & Warren LLP February 15 2012
Charter One operates over 100 banks in Illinois.

Your anti-harassment policies and practices are of little utility if you do not follow them
Fox Rothschild LLP February 15 2012
In the famous Faragher and Ellerth cases decided in 1998, the US Supreme provided an employer with an affirmative defense to a sexual harassment claim involving a hostile work environment.

Former pharmacy benefit management executives sued for alleged violations of customer non-solicitation agreements in Wisconsin federal court
Seyfarth Shaw LLP February 15 2012
Thompson Reuters (Healthcare) Inc. sued three former executive employees, all formerly working for Thompson Reuters in its pharmacy benefits management and consulting division of its healthcare services arm, in the United States District Court for the Eastern District of Wisconsin on Monday and immediately filed a motion for partial summary judgment against the former executives for a declaration that their non-solicitation agreements are enforceable under Wisconsin law.

Poll says Ohioan's support "right-to-work" law
Porter Wright Morris & Arthur LLP February 15 2012
The Columbus Dispatch reported on February 14, 2012 that a majority of Ohioans responding to a recent poll believe Ohio should become a "right-to-work" state.

Employer bound by written notice, cannot rely on uncommunicated method for calculating FMLA leave
Fenwick & West LLP February 15 2012
In Thom v. American Standard, Ltd., former employee Carl Thom, Jr., requested and was granted leave under the federal Family and Medical Leave Act ("FMLA") through June 27, 2005 for shoulder surgery.

Employee is not "substantially limited" under the ADA when he is able to work a 40-hour week but no overtime.
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 15 2012
Some people just can’t catch a break.

Competitors clash over alleged unfair competition due to purported worker misclassification
Fenwick & West LLP February 15 2012
In a novel marriage of wage/hour law and unfair competition, Language Line Services, Inc. recently sued competitor Language Select LLC and its principal Yeun Korman, claiming the competitor allegedly improperly classified its workers as independent contractors, allowing it to offer its services at "artificially low rates."

California joins the U.S. Department of Labor in its fight against misclassification
Fox Rothschild LLP February 15 2012
On February 9, 2012, the U.S. Department of Labor (“DOL”) announced that California has entered into a “memo of understanding” to work with the DOL to “end the practice of misclassifying employees” as independent contractors.

California implements significant changes to the Agricultural Labor Relations Act
Littler Mendelson February 15 2012
Effective January 1, 2012, California's Agricultural Labor Relations Act (ALRA) was amended in ways that will likely help unions to organize agricultural employees in California and obtain favorable labor contracts with agricultural employers.

Proposed FMLA regulations on military family leave and flight crew eligibility published in federal register
Franczek Radelet PC February 15 2012
Late last month, I reported that the Department of Labor had announced proposed changes to the Family and Medical Leave Act regulations with respect to Military Family Leave, Flight Crew FMLA Eligibility and the manner in which employers calculate increments of FMLA leave.

Can employers in Minnesota pay wages with payroll card accounts?
Briggs and Morgan February 15 2012
Yes.

State's adoption of labor union's wage rate as the "general prevailing rate" was not improper
Kelley Drye & Warren LLP February 15 2012
Generally, construction workers in Illinois engaged in public works are required to be paid the "general prevailing rate" for work of that type in the locality where the work is being performed.

Employee who worked half of scheduled shift not entitled to reporting time pay, even if scheduled shift was shorter than usual
Fenwick & West LLP February 15 2012
In Aleman v. Airtouch Cellular, a California employee lost his effort to recover mandatory reporting time pay from his employer under the California Industrial Welfare Commission's Wage Order 4, which provides that an employer must pay an employee no less than two and no more than four hours, at the employee's regular rate of pay, for "[e]ach workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work . . . ."

NLRB steadfast against class action waivers in mandatory arbitration agreements, but whether courts will follow suit remains unclear
Fenwick & West LLP February 15 2012
As noted in our January 2012 FEB, on January 3, 2012 the National Labor Relations Board (the "NLRB" or the "Board") determined in D. R. Horton, Inc. and Michael Cuda that requiring, as a condition of employment, arbitration agreements prohibiting employees from pursuing joint, class, or collective claims regarding their wages and hours or working conditions violates the "concerted activity" protections under the National Labor Relations Act (the "NLRA").

Recruiters paid commissions based on adjusted gross profit held exempt commissioned employees
Fenwick & West LLP February 15 2012
In Muldrow v. Surrex Solutions Corporation, a California appellate court recently confirmed, among other things, that a class of current and former employees, who identified and recruited job placement candidates and placed them at client-companies, were exempt commissioned employees and not entitled to any overtime compensation.

Love is a serious business
Ice Miller LLP February 15 2012
Despite the best intentions of heartless employment lawyers everywhere, love still finds a way to blossom at work.

NLRB nominations sent to the Senate
Littler Mendelson February 14 2012
On February 13, 2012 President Obama formally sent the nominations of Sharon Block, Terence Flynn, and Richard Griffin, Jr. to the Senate for confirmation as National Labor Relations Board members.

U.S. DOL and California team up to crack down on misclassification of workers as independent contractors
Epstein Becker Green February 14 2012
Last week, the U.S. Department of Labor’s Wage and Hour Division and the California Secretary of Labor announced that they were teaming up to crack down on employers who classify workers as independent contractors.

Religious discrimination or legitimate business decision? It depends
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 14 2012
Anyone who works frequently with employment counsel has heard the words “it depends” – it (the answer to a question) depends on the specific facts and circumstances at issue, which should be analyzed and discussed before a course of action is determined.

FTC warns that background searches via mobile App may violate the Fair Credit Reporting Act
Epstein Becker Green February 14 2012
On January 25, 2012, the Federal Trade Commission sent warning letters to three companies that market, in total, six mobile phone applications that provide users with background check reports.

EEOC to receive a $14 million dollar increase in enforcement budget
Fox Rothschild LLP February 14 2012
President Obama has proposed an increase in the EEOC's 2013 fiscal year budget due, in part, to an increasing backlog of cases.

Some members of the NLRB set the stage to depart again from decades of established board precedent
Seyfarth Shaw LLP February 14 2012
There is a potentially significant NLRB decision issued by the National Labor Relations Board on the eve of Member Craig Becker’s departure that appears to have slipped under the radar of many involved in labor management relations.

I love you (a Valentine's Day warning)
Duane Morris LLP February 14 2012
As originally published by SHRM's "We Know Next" found here.

New York Home Care Worker Wage Parity Act takes effect on March 1, 2012
Epstein Becker Green February 14 2012
Medicaid home care aide services providers need to act quickly to avoid the risk of non-payment for services.

Georgia Governor signs law allowing employers to directly answer garnishment
Baker Donelson Bearman Caldwell & Berkowitz PC February 14 2012
On February 8, 2012, Governor Nathan Deal signed HB 683 into law, overturning the Georgia Supreme Court’s recent decision requiring Georgia employers to use a Georgia-licensed attorney when filing answers to garnishments in state courts of record.

Occupational Safety and Health Review Commission finds it was not "reasonably predictable" that Bobcat operator would be exposed to fall hazard
Seyfarth Shaw LLP February 14 2012
In a recent Occupational Safety and Health Review Commission (OSHRC) case, Secretary v. Nuprecon, LP, No. 08-1037 (February 7, 2012), the Commission found that an Occupational Safety and Health Administration (OSHA) citation cannot be based upon OSHA’s speculation as to what might happen, but rather must be based upon actual employee exposure to the alleged hazard.

White House 2013 budget proposal would boost funding for many employment-related programs, agencies
Littler Mendelson February 14 2012
On Monday President Obama unveiled his $3.8 trillion proposed budget for fiscal year 2013.

E-discovery in employment litigation: making practical, yet defensible decisions
Squire Sanders February 14 2012
Much has been said about current issues in electronic discovery, but little attention has been paid to the unique interplay between e-discovery and employment law.

EEOC fact sheet for veterans with service-connected disabilities
Fox Rothschild LLP February 14 2012
For veterans with service related disabilities who seek new employment or to return to their previous employment, and for employers who want to know what laws apply to such applicants or employees, such as USERRA and the ADA, we highly recommend that you visit and read the very helpful EEOC online fact sheet which is written in a simple question and answer format.

California appeals court rejects attempt to try California misclassification case by statistics
Baker & Hostetler LLP February 13 2012
The California Court of Appeal issued a rare decision in favor of employers last week, when it reversed a class action judgment of $15 million and decertified a class of 260 current and former bank employees who claimed they had been misclassified as exempt and were therefore entitled to meal and rest break premiums.

Republican Senators unlikely to challenge Cordray’s appointment
Ballard Spahr LLP February 13 2012
Recently, 38 Republican Senators signed a document in which they vowed to submit an amicus brief in support of litigation challenging President Obama’s appointments of Richard Cordray and the three new members of the NLRB.

Recess appointments challenged in NLRB case in New York
Ballard Spahr LLP February 13 2012
Shortly after the President appointed Richard Cordray and several members of the NLRB through “recess” appointments, Alan Kaplinsky predicted on this blog that there would be litigation over the validity of the recess appointments first with regard to the NLRB, simply because it was likely to result in a “case or controversy” before anything involving the CFPB.

Appeals court finds employer liable for supervisor’s same-sex sexual harassment
Foley & Lardner LLP February 13 2012
A recent case reminds us to take all claims of sexual harassment seriously, including when the two employees are of the same sex.

AutoZone store managers found to be exempt executive employees
Littler Mendelson February 13 2012
On January 27, 2012, the United States District Court for the District of Arizona granted AutoZone’s motion for summary judgment in a case brought on behalf of a nationwide class of current and former store managers seeking overtime pay under the Fair Labor Standards Act (FLSA).

Health care
Patton Boggs LLP February 13 2012
Conference Committee members met again this week to negotiate the extensions bill including the Medicare physician fee fix.

Bill would prevent Excelsior list rulemaking
Littler Mendelson February 13 2012
As a preemptive strike against further development of a National Labor Relations Board representation election rule, Rep. Sandy Adams has introduced a bill that would prohibit the Board from requiring employers to provide to the union or Board employee telephone numbers or email addresses.

Dukes v. Wal-Mart: some closed doors and open issues
Littler Mendelson February 13 2012
The U.S. Supreme Court's opinion in Wal-Mart Stores, Inc. v. Dukes is likely to change the class action landscape for the foreseeable future.

The Fourth Circuit holds that intra-company complaints are protected activity under the FLSA's anti-retaliation provision
Littler Mendelson February 13 2012
The Fair Labor Standards Act (FLSA) provides that an employer may not: “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.”

Guidance on terminations in Alaska
Stoel Rives LLP February 13 2012
Two recent opinions from the Alaska Supreme Court offer helpful guidance to employers regarding termination processes.

USDOT’s campaign against distracted driving now includes ban on use of hand-held cell phones by commercial drivers
Poyner Spruill LLP February 13 2012
Distracted driving is a problem of epidemic proportions on America’s roadways.

The house committee on education and the workforce vows to continue its "aggressive oversight" of President Obama's recess appointments and future actions taken by the "Obama" NLRB
Porter Wright Morris & Arthur LLP February 13 2012
The House Committee on Education and the Workforce, chaired by Rep. John Kline (R-MN), held its hearing Wednesday, February 7, 2012 titled, “The NLRB Recess Appointments: Implications for America’s Workers and Employers.”

Virginia Supreme Court overturns long-standing precedent on the enforceability of noncompetition covenants in employment agreements
Ford & Harrison LLP February 13 2012
The Virginia Supreme Court recently struck down a noncompetition covenant contained in an employment agreement, overruling a 22-year-old precedent.

Fisher v. Halliburton: Fifth Circuit invokes common sense to defend Defense Base Act
Sheppard Mullin Richter & Hampton LLP February 13 2012
In March 2010, a federal district court in Texas ruled that the deaths and injuries sustained by a group of civilian convoy drivers in Iraq during insurgent attacks were not “accidents” caused by conditions of their employment and were, therefore, outside the scope of the protections afforded to contractors by the Defense Base Act (“DBA”). 42 U.S.C. § 1651, et seq. Fisher v. Halliburton, 703 F. Supp. 2d. 639 (S.D. Tex. 2010).

DOL and state of California target independent contractor classifications; 9th Circuit provides more ammunition
Barnes & Thornburg LLP February 13 2012
The U.S. Department of Labor (DOL) and the California Labor Commissioner jointly announced that the DOL’s Wage and Hour Division and California’s Labor and Workforce Development Agency (LWDA) have entered into a memorandum of understanding (MOU), regarding the “improper classification” of workers as independent contractors.

What is the right to work amendment?
Briggs and Morgan February 13 2012
On February 6, 2012, republican senators David Hann and Dave Thompson in the Minnesota State Senate introduced legislation that would allow Minnesota voters to vote on whether to amend the state constitution to make Minnesota a “right to work” state.

Who is responsible for determining whether jobs are available for an employee on disability leave — the employer or employee?
Dorsey & Whitney LLP February 13 2012
One of our employees has been out of work on a disability.

Attorneys fees for prevailing defendants redux
Fox Rothschild LLP February 13 2012
We previously discussed attorneys fees in the context of employment discrimination cases, and noted that under Title VII, 42 U.S.C. § 2000e-5(k), a prevailing party is entitled to reasonable fees.

Illinois appellate court holds that Illinois Supreme Court non-compete decision in Reliable Fire applies retroactively
Seyfarth Shaw LLP February 11 2012
On February 3, 2012, the Appellate Court of Illinois, Second District reversed and remanded the Winnebago County Circuit Court’s decision in Hafferkamp v. Llorca in a significant unpublished non-compete decision.

EEOC to hold public meeting on pregnancy discrimination and caregiver issues
Ford & Harrison LLP February 10 2012
The Equal Employment Opportunity Commission (EEOC) has announced that it will hold a public meeting on the subject of pregnancy discrimination and caregiver issues on Wednesday, February 15, 2012 at the Agency's headquarters, 131 M Street, N.E., Washington, D.C.

Statistical sampling inappropriate in wage and hour class action
Morgan Lewis & Bockius LLP February 10 2012
California Court of Appeal reaffirms in Duran v. U.S. Bank National Association that class actions cannot trump a defendant’s due process rights.

"Trial by formula" rejected and $15m overtime judgment overturned
Littler Mendelson February 10 2012
In Duran v. U.S. Bank National Association, the California Court of Appeal, First Appellate District, overturned a $15 million judgment against U.S. Bank ("USB") entered in a case tried before Alameda County Superior Court Judge Robert Freedman.

2011 employment law review
Dechert LLP February 9 2012
In Thompson v. North American Stainless, the Supreme Court unanimously concluded that Title VII prohibits retaliation against third parties who are closely related to the employee exercising his or her statutory rights and that these third parties have standing to sue under the statute.

OSHA's top ten citations
Cole Schotz Meisel Forman & Leonard PA February 9 2012
The Occupational Safety and Health Administration is an agency within the United States Department of Labor.

Georgia garnishment law amended
Ford & Harrison LLP February 9 2012
Georgia businesses are once again able to answer garnishments through an authorized officer or employee rather than an attorney.

New EEOC rule requires employers to retain workers records to prove compliance with GINA
Arnstein & Lehr February 9 2012
The U.S. Equal Employment Opportunity Commission (EEOC) has implemented a new record-keeping rule that requires employers to retain workplace records for potential Title II investigations to demonstrate their compliance with Title II of the Genetic Information Nondiscrimination Act (GINA).

Houston court rejects "lactation discrimination" claim
Gardere Wynne Sewell LLP February 9 2012
Last week, a federal judge in Houston granted summary judgment to an employer being sued by an employee for pregnancy discrimination.

Class-action lawsuits against law schools reach double-digits overnight
LeClairRyan February 2 2012
At the forefront of these suits is allegedly deceptive employment data.

Georgia court uses restrictive covenant act to blue pencil nonsolicit agreement
Ford & Harrison LLP January 31 2012
In one of the first (if not the first) published decision applying Georgia's new Restrictive Covenants Act ("RCA"), the federal district court for the Northern District of Georgia "blue penciled" or modified an otherwise overbroad nonsolicitation of customers provision.

Energy & Natural Resources

Guidance for renewable energy projects on brownfields proposed by EPA
Smith Gambrell & Russell LLP February 20 2012
One of EPA’s key goals is to encourage the development of renewable energy projects on contaminated properties, so-called “brownfields”.

U.S. shale gas in 2012: Top 10 environmental legal issues to watch
Reed Smith LLP February 20 2012
In his State of the Union address in late January, President Obama offered his support to further develop natural gas as an energy source and stated that “my administration will take every possible action to safely develop this energy”.

New markets: Smartgrid and e-health
Arent Fox LLP February 20 2012
On February 1, 2012, the California Public Utilities Commission (CPUC) approved a smart meter opt-out plan proposed by PG&E in response to numerous customer complaints regarding the potentially harmful effects and data privacy issues allegedly caused by smart meters.

Cooper farms installs two wind turbines near Van Wert
Bricker & Eckler LLP February 20 2012
Cooper Farms, which owns a turkey processing plant north of Van Wert, spent more than $5 million to install two wind turbines that are expected to defray approximately 60 percent of the facility's electric bill, according to a report on WLIO.

FERC Order No. 1000 could profoundly affect renewable energy development
Jones Day February 17 2012
The Federal Energy Regulatory Commission's Order No. 1000, which became effective on October 11, 2011, just may be "the most progressive clean energy action the federal government will take this year," according to Richard Caperton of the Center for American Progress.

Sixth annual energy and economics conference to take place at The Ohio State University
Bricker & Eckler LLP February 17 2012
The University Clean Energy Alliance of Ohio (UCEAO) will host its sixth annual conference titled "Securing Ohio's Energy and Economic Future" from April 2-3, 2012, at the Blackwell on the campus of The Ohio State University.

AK Steel-backed waste heat bill moving through Ohio statehouse
Bricker & Eckler LLP February 17 2012
State Senator Bill Coley introduced Senate Bill 289 to help AK Steel, in his district, take advantage of a proposed co-generation project.

First new nuclear power plant approved in us in over 30 years: full construction of the $14 billion Plant Vogtle Units 3 & 4 in Georgia can now commence
Alston & Bird LLP February 17 2012
For the first time in thirty years, the United States has approved the construction of a new nuclear power plant.

DOE says 80 percent of appliances pass energy star tests
Shook Hardy & Bacon LLP February 17 2012
A recent U.S. Department of Energy (DOE) report claims that more than 80 percent of the appliances tested by the agency as part of a pilot verification program performed to Energy Star standards.

Intermittent generators should consider the risks of economic curtailment when negotiating PPAs
Jones Day February 17 2012
In November 2011, the Utility Variable-Generation Integration Group released an updated version of its summary of energy markets and market rules for wind energy capacity in North America.

FERC addresses uncertainty around simultaneous locational exchanges
Morgan Lewis & Bockius LLP February 17 2012
FERC determines that simultaneous locational exchanges that involve a merchant function’s affiliated transmission provider’s transmission system require prior approval.

BLM proposes limiting land available for oil shale activity in western states
Shook Hardy & Bacon LLP February 17 2012
The U.S. Department of Interior’s Bureau of Land Management (BLM) has signed a notice of availability of the Draft Programmatic Environmental Impact Statement (PEIS) for allocation of oil shale and tar sands resources in Colorado, Utah and Wyoming.

Canada announces plan for oil sands monitoring
Shook Hardy & Bacon LLP February 17 2012
Canada has announced the Joint Canada/Alberta Implementation Plan for Oil Sands Monitoring, detailing how the governments of Alberta and Canada will implement a stringent monitoring program for oil sands that “integrates air, water, land and biodiversity elements.”

Pennsylvania passes Marcellus Shale unconventional gas well fee
Reed Smith LLP February 17 2012
After much debate, and ultimately compromise, last night Gov. Tom Corbett signed into law a bill that permits any of Pennsylvania's 67 counties to impose a fee on almost every natural gas-producing well drilled in Pennsylvania.

The California Public Utilities Commission approves new categories for renewable energy procurement
Latham & Watkins LLP February 16 2012
In last year’s 2011-2012 First Extraordinary Session of the California Legislature, California adopted numerous changes to its renewables portfolio standard (RPS), most notably to raise the State’s RPS targets from 20 percent of retail sales to 33 percent (Senate Bill 2 (1X) or 33% RPS Law).

Ohio EPA issues final general air permit for shale oil and gas production
Thompson Hine LLP February 16 2012
The discovery of vast volumes of oil and natural gas deep within Ohio's Utica and Marcellus shale formations, combined with recent developments in horizontal drilling techniques - "hydraulic fracturing" - have produced significant interest in drilling well activity.

PA Marcellus legislation brings several hammers down on local ordinances
Fox Rothschild LLP February 16 2012
A lot has been said about the preemption of local ordinances contained in the amendments to the PA Oil and Gas Act (HB 1950) recently signed into law by Governor Corbett.

Pennsylvania authorizes impact fee on natural gas producers
Baker Botts LLP February 15 2012
On February 13, 2012, Pennsylvania's governor, Tom Corbett, signed a bill authorizing counties in Pennsylvania to impose a fee on certain natural gas wells.

New business opportunities in New Jersey energy laws
Lowenstein Sandler PC February 15 2012
In the final days of the recent lame-duck session of the state legislature, the Senate and Assembly passed and sent to New Jersey Governor Chris Christie a dozen bills that address renewable energy, energy efficiency and related subjects.

A tradition like no other? NRC approves nuclear reactors
Goodwin Procter LLP February 15 2012
For the first time since 1978, the Nuclear Regulatory Commission (NRC) has approved the construction of two new nuclear reactors in the United States.

Obama's budget request provides funding and establishes benchmarks for wind energy
Bricker & Eckler LLP February 15 2012
In the fiscal year 2013 budget proposal sent to Congress this week, President Barack Obama allotted $95 million of the $27.2 billion requested for the Department of Energy to wind energy through the Office of Energy Efficiency and Renewable Energy, North American Windpower reports.

EPA steps up enforcement to address fraudulent environmental credits
Jones Day February 15 2012
Recent fraud actions brought under the federal Renewable Fuels Standard, 42 U.S.C. § 7545(o), underscore the importance of exercising care in the purchase of credits and allowances in the marketplace.

Legislative watch: Pennsylvania governor signs Marcellus Shale regulatory and impact fee legislation
Reed Smith LLP February 15 2012
Yesterday, Pennsylvania Governor Tom Corbett announced he signed into law House Bill 1950, the Marcellus Shale bill.

CAISO initiates broad cost allocation stakeholder process
Stoel Rives LLP February 15 2012
Yesterday, the California Independent System Operator Corp. (“CAISO”) issued a straw proposal entitled “Cost Allocation Guiding Principles.”

Summary of electric agenda items for February 16, 2012 FERC open meeting
Winston & Strawn LLP February 14 2012
This may be a Notice of Proposed Rulemaking in response to comments received on the Commission's March 17, 2011 Notice of Inquiry.

DOE loan guarantee report makes recommendations
Bracewell & Giuliani LLP February 14 2012
As expected, late Friday afternoon, the Obama Administration released former Department of Treasury official Herb Allison’s independent review on the Department of Energy’s loan guarantee program.

Pennsylvania passes comprehensive amendments to oil and gas laws
Morgan Lewis & Bockius LLP February 14 2012
Pennsylvania legislation imposes impact fees on natural gas wells, restricts local regulation of drilling operations, and strengthens environmental requirements.

Has the nuclear renaissance finally begun?
McDermott Will & Emery February 13 2012
The Nuclear Regulatory Commission voted 4-1 on February 9 to issue Combined Operating Licenses for two new nuclear units at the Southern Company’s Vogtle site in Georgia.

Summary of FERC meeting agenda
White & Case LLP February 13 2012
Below are brief summaries of the agenda items for the Federal Energy Regulatory Commission’s February 16, 2012 meeting, pursuant to the agenda as issued on February 9, 2012.

Environment
Patton Boggs LLP February 13 2012
On Wednesday, February 15, the House Committee on Natural Resources will hold a full committee oversight hearing on the U.S. Department of Interior’s budget request for Fiscal Year 2013.

Transportation
Patton Boggs LLP February 13 2012
This week, the House Rules Committee released the full version of the American Energy and Infrastructure Act, which merges the five-year, $260 billion reauthorization of federal highway, transit and highway safety programs with the Ways and Means financing bill and several Natural Resources Committee-approved oil and gas measures.

Bingaman CES plans
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
Senate Energy and Natural Resources Committee Chairman Jeff Bingaman (D-NM) said February 10 that he hopes to introduce a clean energy standard as early as this week but admitted that he does not believe the proposal will become law during this Congress.

MA agreement prohibits plant’s coal usage
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The owner of the Salem Harbor Power Station, one of the oldest and most heavily polluting power plants in Massachusetts, agreed February 3 to not use coal at any new generating units at the plant after the current facility closes in 2014.

Green investment fair
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The White House will host a renewable energy investment fair March 13 featuring Energy Secretary Steven Chu and high-profile green investors.

Mercury standards prompt plant closures
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
FirstEnergy Corp. announced February 8 that it will close three coal-fired power plants in West Virginia, citing the Environmental Protection Agency’s mercury and air toxics standards and other environmental regulations.

Mercury rule closure estimates challenged
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
Republicans on the House Energy and Commerce Committee accused the Environmental Protection Agency February 8 of misleading the public when it determined that new mercury and air toxics standards for power plants would force the retirement of 4.7 GW of coal-fired generation.

Rare Earths Caucus
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
Representative Hank Johnson’s (D-GA) office announced February 7 that he will co-chair the House Rare Earths Caucus along with Congressman Mike Coffman (R-CO).

$12 million through SunShot
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
Energy Secretary Steven Chu announced over $12 million February 8 to hasten solar energy innovation from the lab to the marketplace through the agency’s SunShot Incubator Program.

FERC Keystone authority legislation approved
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The House Energy and Commerce Committee approved February 7 legislation (H.R. 3548) that would shift permitting authority of the Keystone XL pipeline from the State Department to the Federal Energy Regulatory Commission.

Nuke license approved
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The Nuclear Regulatory Commission voted 4-1 February 9 to approve a license for Southern Company to build two new nuclear reactors, the first license in three decades.

Allison Review completed
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The White House released the full independent review of the Department of Energy’s loan and loan guarantee energy programs February 10.

DOE to assist with Boiler MACT compliance
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
Speaking at a conference co-sponsored by the National Association of State Energy Officials and the Association of State Energy Research and Technology Transfer Institutions February 9, Department of Energy Deputy Assistant Secretary for Energy Efficiency Kathleen Hogan said that the agency is preparing to help facilities comply with the new Environmental Protection Agency’s Boiler MACT rule, which recently issued new air toxics standards for boilers, process heaters, and certain incinerators.

Upcoming hearings
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The Senate Energy and Natural Resources Committee will receive testimony on the Department of Energy’s budget request for fiscal year 2013 on February 16.

Subpoena over Solyndra threatened
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
Fourteen Republicans on the House Energy and Commerce Committee sent a letter February 9 pressing the Obama administration to make available five advisers to provide updated testimony on loan guarantees for Solyndra.

Fracking regs
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The Bureau of Land Management is preparing draft regulations for hydraulic fracturing that would require oil and gas companies to disclose details of chemical additives, test the integrity of wells, and provide more information on water use and waste management.

ITC on wind trade case
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
On February 10, the U.S. International Trade Commission voted 5-0 finding a reasonable indication that the US wind industry, represented by the Wind Tower Trade Coalition, is being adversely affected by dumped wind towers from China and Vietnam.

No improper influence found
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The State Department’s inspector general found February 9 that TransCanada Corp. did not improperly influence the selection of a third-party contractor to conduct the environmental review of the proposed Keystone XL pipeline.

The ever-quotable Posner J on letters of intent
Borden Ladner Gervais LLP February 9 2012
BPI Energy Holdings and Drummond Co. decided to form an alliance under which BPI would sell options to Drummond in exchange for a right to extract gas from Drummond’s coal beds.

FERC staff seeks comments on its proposal for a process to advise the EPA
Cadwalader Wickersham & Taft LLP February 3 2012
On January 30, 2012, the Federal Energy Regulatory Commission (“FERC” or “Commission”) staff issued a White Paper explaining staff’s proposal on advising the Environmental Protection Agency (“EPA”) in responding to requests for an extension of time to comply with EPA’s Mercury and Air Toxics Standards (“MATS”).

Virginia: energy capital of the east coast
LeClairRyan January 25 2012
LeClairRyan’s Energy Team combines the considerable experience of veteran professionals who routinely represent traditional electrical power providers as well as emerging growth companies.

Environment

EPA issues draft guidance for estimating GHG emissions from vehicles
Shook Hardy & Bacon LLP February 17 2012
The U.S. Environmental Protection Agency (EPA) has issued draft guidance to state air pollution regulators explaining how to use the Motor Vehicle Emissions Simulator (MOVES) model to estimate greenhouse gas (GHG) emissions from on-road vehicles.

GAO report claims federal agencies unable to assess mobile diesel emission-reduction programs
Shook Hardy & Bacon LLP February 17 2012
A recent Government Accountability Office (GAO) report asserts that federal agencies lack the information to assess the “effectiveness” of efforts to reduce mobile diesel emissions.

Private automobile is not a CERCLA facility
Kelley Drye & Warren LLP February 17 2012
Westville, Indiana's Volunteer Fire Department responds to car accidents when there is a hazardous material release.

Washington State agency proposes revisions to industrial stormwater permit
Shook Hardy & Bacon LLP February 17 2012
The Washington State Department of Ecology (Ecology) has proposed revisions to its 2009 Industrial Stormwater General Permit based on an order by the state Pollution Control Hearings Board (Board), which found the existing permit too lenient.

Insurance coverage for climate change suits: Virginia Supreme Court reconsidering 2011 Steadfast v. AES decision
Latham & Watkins LLP February 16 2012
On February 27, 2012, the Virginia Supreme Court will hear oral argument on the petition for rehearing in Steadfast Insurance Co. v. AES Corporation (Steadfast).

California finalizes greenhouse gas "cap and trade" regulations
Jones Day February 15 2012
As expected, the California Air Resources Board adopted greenhouse gas emission cap and trade regulations on October 20, 2011, and the California Office of Administrative Law approved the regulations on December 13, 2011.

EPA points to greenhouse gas emission reductions to support new utility standards
Jones Day February 15 2012
On December 21, 2011, U.S. EPA released final Mercury and Air Toxics Standards under Section 112 of the Clean Air Act for emissions of mercury, acid gases, and other "hazardous air pollutants" (or "HAPs") from coal- and oil-fired electric generating units, reflecting what EPA believes is the maximum achievable control technology for regulated HAP emissions from such sources.

FERC issues white paper on reliability concerns over final MATS Rule
Jones Day February 15 2012
EPA's final MATS Rule, coupled with more stringent regulation of utility cooling water intake structures and greenhouse gas emissions, is predicted to accelerate the retirement of some existing coal-fired power plants and to lead to the retrofitting of others.

Climate change "public trust" lawsuit transferred to D.C. federal court
Jones Day February 15 2012
After remaining inactive for several months, there have been a number of significant developments in the federal lawsuit filed by advocacy groups in the name of minor children against a number of states and the federal government, Alec L. v. Lisa Jackson et al.

Comer II: Is "If at first you don't succeed, try, try again" a valid legal strategy?
Jones Day February 15 2012
Comer, et al. v. Murphy Oil USA, et al., No. 1:11-cv-00220 (S.D. Miss.) ("Comer II"), is a class-action complaint brought by Mississippi residents that is nearly identical to another action, Comer, et al. v. Murphy Oil USA, et al., No. 1:05-cv-00436-LG-RHW ("Comer I"), previously dismissed by the federal courts.

Ninth Circuit rejects “hard look,” “scientific integrity” claims in prominent NEPA case
Hogan Lovells February 14 2012
The U.S. Court of Appeals for the Ninth Circuit issued a significant National Environmental Policy Act ruling on Thursday, holding that a federal agency complied with the statute when it approved snowmaking with reclaimed water at an Arizona ski resort.

Obama budget would cut Superfund by 6%: how about a new approach?
Foley Hoag LLP February 14 2012
According to a report in yesterday’s Greenwire, President Obama’s proposed budget would reduce Superfund spending by 6%, from $565 million to $532 million.

OSHA PELs, NIOSH RELs, or USEPA IIASLs: which are relevant to a vapor intrusion lawsuit under RCRA?
Taft Stettinius & Hollister LLP February 13 2012
A federal district court was recently presented several government standards to use in determining whether indoor air contamination from vapor intrusion created an imminent and substantial endangerment to human health or the environment to support a citizen suit claim asserted under the Resource Conservation and Recovery Act (RCRA), 49 U.S.C. § 6972(a)(1)(B).

US EPA announces $1.4 million civil penalty against chemical company for TSCA violations
Squire Sanders February 13 2012
In an action that will likely be a wake-up call to chemical manufacturers and importers, the US Environmental Protection Agency announced on February 7 that Dover Chemical Corporation has agreed to pay a $1.4 million civil penalty for violations of the Toxic Substances Control Act.

Diesel information lacking
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The Government Accountability Office announced February 7 that federal agencies lack the information necessary to assess the effectiveness of federal efforts to reduce mobile diesel emissions.

E-waste export investigation
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The U.S. International Trade Commission announced an investigation February 2 into the current market, characteristics, and practices in the electronic waste export industry.

Truck makers challenge Navistar-specific rule
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
On February 7 and 8, Mack Trucks Inc., Volvo Group North America LLC, Daimler Trucks North America LLC, and Detroit Diesel Corp. filed petitions for review in the U.S. Court of Appeals for the District of Columbia Circuit challenging the Environmental Protection Agency’s interim final rule that specifically allows Navistar Inc. to pay non-conformance penalties in order to continue producing heavy-duty, 2012 and 2013 model-year diesel engines that exceed nitrogen oxides limits.

Energy and Climate Debate
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
Multi-year, comprehensive highway and transit reauthorization legislation will dominate both chambers this week as debate is scheduled in both the House and Senate.

Clean Air Act review planned
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The House Energy and Commerce Subcommittee on Energy and Power announced February 9 that it will launch a series of forums on whether broad changes are needed to the Clean Air Act.

House Committee approves ethanol study legislation
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The House Science, Space, and Technology Committee approved legislation February 7 that would require the Environmental Protection Agency to further study the impacts of higher ethanol blends in gasoline on vehicles and the environment.

Continuing legal challenges to CSAPR
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
On February 9, the labor and industry plaintiffs challenging the Environmental Protection Agency’s Cross-State Air Pollution Rule in the U.S. Court of Appeals for the District of Columbia Circuit filed a brief arguing that the rule disregarded the actual “significant contribution” of a state to downwind air quality impairment, while separately, states and local governments also challenging the rule filed briefs claiming that the agency inappropriately usurped state power while implementing the rule.

Increases to emissions budgets finalized
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The Environmental Protection Agency released a final rule February 7 to increase emissions budgets in ten states under the Cross-State Air Pollution Rule to reduce pollution that crosses state lines.

LCV marks issued
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The League of Conservation Voter issued its 2011 National Environmental Scorecard February 7, giving a score of 10 or lower out of a possible 100 on key environmental votes to more than 100 Republican House members.

EPA semiannual regulatory agenda forthcoming
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
On February 13, the Environmental Protection Agency will publish its semiannual regulatory agenda in the Federal Register, outlining plans for issuing proposed and final rules, both those already finished or those currently being formulated or revised.

Oral arguments scheduled
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The U.S. Court of Appeals for the District of Columbia issued a schedule for oral arguments February 8 in several lawsuits challenging the Environmental Protection Agency’ greenhouse gas regulations.

NM cap and trade repealed
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
New Mexico’s Environmental Improvement Board repealed 5-0 February 6 CO2 cap and trade rules passed in 2010 by the same panel under the administration of former Governor Bill Richardson (D).

$120 million for battery and storage hub
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The Department of Energy announced February 7 its plans to launch a new energy innovation hub for advanced research on batteries and energy storage, with an investment of up to $120 million over five years.

GHG permitting rule revisions to OMB
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 12 2012
The Environmental Protection Agency sent February 6 a proposed rule on revisions to its greenhouse gas permitting program to the White House Office of Management and Budget for review.

FEMA found immune from liability for failure to warn trailer occupants of formaldehyde emissions
Shook Hardy & Bacon LLP February 10 2012
The Fifth Circuit Court of Appeals has affirmed a Louisiana district court judgment dismissing complaints filed by Alabama and Mississippi residents who alleged that the Federal Emergency Management Agency (FEMA) was liable for failing to warn occupants of trailers provided by FEMA of formaldehyde emissions.

EPA prioritizes new source review program enforcement for 2012
Winston & Strawn LLP February 8 2012
The United States Environmental Protection Agency (“EPA”) is continuing to prioritize enforcement of the new source review (“NSR”) permitting program for cement, acid, and glass manufacturers, as well as for coal-fired power plants, throughout 2012.

How clean is clean in New York
Cole Schotz Meisel Forman & Leonard PA February 1 2012
New York’s highest court recently upheld New York Department of Environmental Conservation’s regulations regarding cleanups at contaminated sites.

NJDEP has finalized its vapor intrusion technical guidance document
Cole Schotz Meisel Forman & Leonard PA January 25 2012
The NJDEP has recently finalized its revamped Vapor Intrusion Technical Guidance Document to provide more in depth assistance in the evaluation of vapor intrusion concerns.

Franchising

General Practice

IRS extends portability election deadline for qualifying estates
Bryan Cave LLP February 20 2012
The Internal Revenue Service announced that it was extending the portability election deadline for certain estates of married individuals.

Do law students receive sufficient real-world training?
Dinsmore & Shohl LLP February 17 2012
Recent articles appearing in the New York Times and Wall Street Journal, respectively, question whether our nation’s law schools are providing sufficient practical training to their students.

Federal complaint that is "inextricably intertwined" with state court proceedings is barred
Kelley Drye & Warren LLP February 16 2012
Bryan Brown applied for admission to the Indiana Bar in 2007.

Pennsylvania law firm sues former attorney and new firm for unfair competition
Littler Mendelson February 16 2012
Although law firm departures can be bitter, they rarely result in litigation.

Tension between Wisconsin constitution and statute support qualified immunity finding
Kelley Drye & Warren LLP February 16 2012
Jesus Gonzalez, a Wisconsin gun rights activist, openly carried a handgun into retail stores near Milwaukee on two occasions in 2008 and 2009.

Outsourcing your attorneys: the next wave?
Adli Law Group P.C February 15 2012
Outsourcing arrangements, under which companies hire service providers to perform non-core functions such as Information Technology (IT), have been around for decades.

Healthcare

Combe Incorporated (Vagisil Screening Kit)
Venable LLP February 21 2012
The NAD has recommended that Combe Inc. modify or discontinue certain advertising claims and more clearly disclose the limitations of its Vagisil Screening Kit.

House, Senate approve measure deferring physician pay cut
King & Spalding LLP February 20 2012
On Friday, February 17, the House (293-132 vote) and Senate (60-36 vote) approved the conference report to The Middle Class Tax Relief and Job Creation Act of 2012 (H.R. 3630), freezing Medicare physician payment rates through the end of 2012.

CMS proposed rule would require reporting and returning overpayments
Bricker & Eckler LLP February 20 2012
On February 16, 2012, CMS published a Proposed Rule clarifying Medicare providers’ and suppliers’ legal obligations regarding the reporting and returning of overpayments.

HHS announces delay for ICD-10 compliance
King & Spalding LLP February 20 2012
The United States Department of Health & Human Services (HHS) has confirmed that it will delay the October 1, 2013 date initially set for compliance with the International Classification of Diseases, 10th Edition diagnoses and procedure codes (ICD-10).

Federal Circuit vacates preliminary injunction in pharmaceutical case
Quinn Emanuel Urquhart & Sullivan LLP February 20 2012
In Warner Chilcott Labs. Ireland Ltd. v. Mylan Pharms. Inc., No. 2011-1611 (Fed. Cir. Dec. 12, 2011), the Federal Circuit vacated a preliminary injunction entered by the U.S. District Court for the District of New Jersey to prevent Mylan from launching a generic version of 150 mg Doryx, which is the branded name for the doxycycline hyclate delayed-release tablets sold by plaintiffs Warner Chilcott and Mayne Pharma International (the “Plaintiffs”).

President’s 2013 budget proposes $364 billion in healthcare spending cuts over 10 years
King & Spalding LLP February 20 2012
President Obama’s recently released 2013 proposed budget seeks a total of $364 billion in healthcare savings over 10 years.

CMS proposes rules on reporting and returning overpayments: providers may have duty to make reasonable inquiry with deliberate speed
Haynes and Boone LLP February 20 2012
The Centers for Medicare and Medicaid Services (CMS) on February 16, 2012 proposed rules implementing Section 6402(a) of the Affordable Care Act, requiring persons to report and return Medicare overpayments by the later of 60 days after an overpayment is identified or the date any corresponding cost report is due.

Emergency regulation to enforce medical loss ratio requirements is made permanent in California
Edwards Wildman Palmer LLP February 20 2012
On February 9, 2012, California Insurance Commissioner Dave Jones announced that the Office of Administrative Law approved his request to make permanent the emergency regulation issued last year requiring health insurers to allocate a larger share of insurance premiums to actual medical care, rather than overhead costs and profits.

CMS issues proposed rule on reporting and refunding overpayments
King & Spalding LLP February 20 2012
On February 16, 2012, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule implementing the Patient Protection and Affordable Care Act’s overpayment reporting and refunding requirements for Medicare Part A and Part B overpayments (the Proposed Rule).

HHS releases model notices related to Medical Loss Ratio requirement
Littler Mendelson February 17 2012
The U.S. Department of Health and Human Services (HHS) has issued proposed notices that health insurance companies may use for compliance with the new Medical Loss Ratio (MLR) requirements under the Affordable Care Act.

When plaintiffs exit market and are no longer direct competitor of defendants stay pending reexamination is justified as plaintiffs can no longer show prejudice: Wyeth v. Abbott Laboratories
Jeffer Mangels Butler & Mitchell LLP February 17 2012
In this patent action, Defendants filed a renewed motion to the stay the proceedings pending an inter partes reexamination of the patents-in-suit.

Lawson v. Fidelity Management & Research LLC, et al.
Epstein Becker Green February 17 2012
Lawson v. Fidelity Management & Research LLC, et al., No. 10-2240 (1st Cir. Feb. 3, 2012) (pdf), discussed in our February 16 posting, comes as a welcome development to privately-held companies that are providers of health care goods and services because it should, if followed generally, preclude whistleblowers from bringing the kinds of audit-related and financial accounting claims that are within the compass of the Sarbanes-Oxley Act (SOX).

Claim first made when insured received writ of summons
Wiley Rein LLP February 17 2012
A Pennsylvania state court has held that a claim against an insured psychiatrist was first made under his professional liability policy when he was served with a writ of summons commencing a malpractice suit, not when he received a medical records request for a deceased patient or when he sought help from the insurer in responding to the request.

CMS issues proposed rule relating to manufacturer rebates and reimbursement amounts for outpatient prescription drugs dispensed to medicaid beneficiaries
Epstein Becker Green February 17 2012
On February 2, 2012, the Centers for Medicare & Medicaid Services (“CMS”) published a proposed rule (“Proposed Rule”) intended to implement changes to the Medicaid Drug Rebate Program (“MDRP”) and to reimbursement limits for outpatient drugs covered by Medicaid made by Title II, Subtitle F, of the Patient Protection and Affordable Care Act of 2010,i as amended by Section 1206 of the Health Care and Education Reconciliation Act of 2012ii (collectively, “ACA”).

Oxford academic wants who to adopt framework convention on alcohol control
Shook Hardy & Bacon LLP February 17 2012
A university lecturer in global health politics at the University of Oxford has called for the World Health Organization (WHO) to use a “vastly underused” mechanism, a legally binding framework convention requiring just a two-thirds vote, to address the health burdens and mortality purportedly attributed to alcohol consumption.

HIPAA/HITECH Act privacy rule coming soon?
Alston & Bird LLP February 17 2012
It is being widely reported that the HIPAA/HITECH Act Omnibus Final Rule will be issued in March 2012.

Pharma company settles whistleblower suit alleging wrong treatment of drugs as generic
Hodgson Russ LLP February 17 2012
A qui tam case filed in federal court in Maryland has yielded an $11 million False Claims Act settlement.

Justices consider patent process for personalized medicine industry
Fenwick & West LLP February 17 2012
In the past decade, personalized medicine has emerged as one of the most promising areas of medical research.

Clinical labs face additional fee cuts in final payroll tax cut deal
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 17 2012
The clinical laboratory community is dismayed by a last minute, $2.7 billion cut to the Medicare Clinical Laboratory Fee Schedule (CLFS) to help finance the payroll tax and SGR deal.

Ten steps global life sciences companies should take in 2012
Sidley Austin LLP February 17 2012
Members of Sidley Austin’s Global Life Sciences Industry Team recently reviewed litigation, regulatory, corporate, enforcement, and legislative trends in their respective fields.

Biosimilar battlegrounds - what is new in biosimilars and where?
Bereskin & Parr LLP February 17 2012
Biosimilars are second entry biologic drugs.

EMTALA: CMS request for comments
Baker & Hostetler LLP February 16 2012
CMS has issued a request for comments on the applicability of the Emergency Medical Treatment and Active Labor Act (EMTALA) to hospital inpatients in the February 2, 2012, Federal Register.

Opening the door for generic biologics: FDA releases the first guidance documents implementing the biosimilar approval pathway
Latham & Watkins LLP February 16 2012
Therapeutic biologic products are at the forefront of medical research and provide promising treatments for a variety of medical conditions.

CMS issues proposed overpayment rule
Taft Stettinius & Hollister LLP February 16 2012
Today, the Centers for Medicare & Medicaid Services published a proposed rule requiring health care providers and suppliers to report and return self-identified overpayments.

New chapter in decade long patent fight among DNA diagnostics leaders
Dechert LLP February 16 2012
Enzo Life Science’s U.S. Patent No. 6,992,180 entitled “Oligo- or Polynucleotides Comprising Phosphate-Moiety Labeled Nucleotides” (“the ’180 patent”) issued in January of 2006.

Thermolife steps up patent infringement suits over creatine supplement
Arnstein & Lehr February 16 2012
Phoenix dietary supplement company ThermoLife International, LLC, has sued Denver competitor MusclePharm Corporation in U.S. District Court in Arizona, claiming that MusclePharm’s Creatine supplement is infringing ThermoLife’s U.S. Patent No. 7,777,074 for amino acid compounds, including creatine nitrate, a vasodilator that increases blood flow.

Medical Device Patient Safety Act proposes two-step change to oversight of devices
Sedgwick LLP February 16 2012
In mid-December of 2011, following the recommendation of the Government Accountability Office (GAO), a bipartisan group of senators introduced the Medical Device Patient Safety Act.

The Biologics Price Competition and Innovation Act: implications for implementation in light of FDA draft guidance
Foley & Lardner LLP February 16 2012
On February 9, 2012, after significant time had elapsed since the passage of the Biologics Price Competition and Innovation Act (BPCIA) of 2009, the FDA finally issued three draft guidances, which provide the agency’s current positions on important scientific and regulatory factors to be considered in the development and submission of applications to the FDA for biosimilar products.

Proposed legislation would streamline compliance regulations for medical devices
Shook Hardy & Bacon LLP February 16 2012
U.S. Senators Bob Casey (D-Pa.) and John McCain (R-Ariz.) have introduced a bill (S. 2067) that would “remove burdensome regulations that hurt medical device manufacturers.”

Massachusetts: all contracts with vendors that handle personal information must institute safeguards by March 1
Baker & Hostetler LLP February 16 2012
Regulators are focusing more and more on how responsible organizations are when engaging third-party vendors.

FDA issues draft biosimilars guidance, gaps leave practitioners wondering
Shook Hardy & Bacon LLP February 16 2012
The Food and Drug Administration (FDA) has issued three draft guidance documents to implement health-care reform law provisions requiring the creation of an abbreviated approval pathway for biological products that are similar to an FDA-licensed biological product.

Pay-for-delay deals and biologics’ exclusivity period part of President’s proposed 2013 budget
Shook Hardy & Bacon LLP February 16 2012
According to a news source, President Barack Obama’s (D) proposed 2013 budget includes provisions that would set new policies pertaining to generic medications and biologics.

CMS proposes regulation implementing the ACA's 60-day overpayment report and return provision
Waller Lansden Dortch & Davis LLP February 16 2012
Only two days after the government’s announcement that it recovered a record-breaking $4.1 billion from its healthcare fraud enforcement efforts in 2011, the Centers for Medicare and Medicaid Services (CMS) published a draft regulation in today’s Federal Register implementing the Affordable Care Act’s (ACA) 60-day overpayment report and return provision.

The 60-day rule: CMS issues proposed rule on reporting & return of overpayments
Ropes & Gray LLP February 16 2012
The February 16, 2012 Federal Register published a proposed rule from the Centers for Medicare & Medicaid Services (“CMS”) that attempts to clarify providers’ and suppliers’ obligation under Section 6402 of the Patient Protection and Affordable Care Act of 2010 (“ACA”) to report and return Medicare overpayments within sixty days of their identification.

Federal Circuit confirms that generic ANDA applications did not infringe drug patents
Shook Hardy & Bacon LLP February 16 2012
The Federal Circuit Court of Appeals has determined that when generic drug makers seek Abbreviated New Drug Applications (ANDAs) from the Food and Drug Administration (FDA) for uses of patented drugs not covered by the patents, the generics do not infringe the patents.

A review of healthcare bankruptcies: 2011
Baker & Hostetler LLP February 16 2012
The healthcare industry was ailing in 2011.

FDA issues draft guidance regarding safety data collection in late-stage premarket and postapproval clinical studies
Hunton & Williams LLP February 16 2012
On February 10, 2012, the U.S. Food and Drug Administration (“FDA” or “the Agency”) announced the availability of a new draft guidance document entitled “Determining the Extent of Safety Data Collection Needed in Late Stage Premarket and Postapproval Clinical Investigations.”

CMS publishes proposed rule on return of Medicare and Medicaid overpayments
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 16 2012
Health care providers and suppliers concerned about how the Centers for Medicare & Medicaid Services (CMS) plans to implement the 60-day deadline for returning Medicare and Medicaid overpayments enacted as part of the Affordable Care Act (ACA) now have a proposed rule that provides some insight.

Federal Circuit vacates opinion in Marine Polymer Technologies, Inc. v. Hemcon, Inc., agreeing to rehearing en banc; Venable files amicus brief on behalf of industry associations
Venable LLP February 16 2012
On February 10, 2012, the Biotechnology Industry Organization (BIO) and Pharmaceutical Research and Manufacturers of America (PhRMA) filed a joint amicus brief for the Marine Polymer Technologies Federal Circuit en banc review.

Life sciences startups generate more capital in 2011, biotech job ads down slightly in Q4
Shook Hardy & Bacon LLP February 16 2012
According to data analyzed by PricewaterhouseCoopers (PwC) in a new report titled “Zigzagging Upward,” venture capital funding increased 21 percent during 2011 for the life sciences sector, including biotechnology and medical device companies.

HHS proposes new regulations regarding Medicare overpayments
Choate Hall & Stewart LLP February 16 2012
Doctors, hospitals and suppliers will need to voluntarily report and return Medicare overpayments within 60 days of discovering the overpayment or face the prospect of False Claims Act and other civil or administrative liability.

Overpayment reporting obligations: proposed rule would effectively treat all overpayments as fraud
Baker & Hostetler LLP February 16 2012
On February 16, 2012, the Centers for Medicare and Medicaid Services (CMS) published its proposed rule implementing Section 6402(a) of the Patient Protection and Affordable Care Act (PPACA) that requires Medicare providers and suppliers to report and return overpayments within 60 days of identification in most instances; failure to report and return overpayments in accordance with Section 6402(a) could expose a provider to False Claims Act liability, civil monetary penalties or exclusion.

Certiorari decision on patent eligibility for isolated DNA could be reached February 20
Shook Hardy & Bacon LLP February 16 2012
Briefing in Association for Molecular Pathology v. Myriad Genetics, Inc., No. 11-725 (U.S., petition for certiorari filed December 7, 2011), is now complete, and the U.S. Supreme Court is scheduled to consider the matter during its February 17, 2012, conference.

FDA publishes draft biosimilars guidance
McDermott Will & Emery February 16 2012
The Biologics Price Competition and Innovation Act of 2009 created an abbreviated approval pathway for biological products shown to be biosimilar to, or interchangeable with, a U.S. Food and Drug Administration (FDA)-licensed biological reference product.

Group health plan and insurance coverage: final guidance issued on summary of benefits and coverage
Baker & Hostetler LLP February 16 2012
The U.S. Departments of the Treasury, Labor (DOL) and HHS (collectively, the "Departments") recently released final regulations governing the summary of benefits and coverage and the uniform glossary for group health plans and health insurance coverage.

Civil suit challenging North Carolina Medicaid appeal procedures
Williams Mullen February 15 2012
A civil suit recently filed in North Carolina could affect who decides appeals of agency decisions related to the North Carolina Medicaid program, which could in turn affect the difficulty of appealing agency decisions by the Division of Medical Assistance.

CMS issues proposed overpayment refund regulations for the 60-Day Rule
Foley & Lardner LLP February 15 2012
On February 13, 2012, CMS issued long-awaited guidance under the “60-Day Rule” (Proposed Rule).

Not a paper tiger: current trends in health care fraud enforcement
Blank Rome LLP February 15 2012
The war against health care fraud will wage on in 2012.

2012-02-15 CMS issues proposed overpayment rule
SNR Denton February 15 2012
On February 14, 2012, the Centers for Medicare & Medicaid Services released its proposed rule to implement § 6402(a) of the Affordable Care Act, which created a new § 1128J(d) of the Social Security Act (entitled, “Reporting and Returning of Overpayments”).

Opponents file brief with Supreme Court arguing individual mandate provision of health care reform law is unconstitutional
Ford & Harrison LLP February 15 2012
A group of 26 states has filed a response brief with the U.S. Supreme Court, arguing that Congress exceeded its authority under the Commerce Clause when it enacted the individual mandate provision of the 2010 Patient Protection and Affordable Care Act (PPACA).

FDA releases draft guidance on biosimilars
Drinker Biddle & Reath LLP February 15 2012
The Food and Drug Administration (FDA) released in the Federal Register three draft guidances on biosimilar products today.

Employee benefit plan alert
Taylor English Duma LLP February 15 2012
The DOL, the IRS and HHS were active in the first two weeks of February.

Massachusetts corporate practice of medicine regulations finalized
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 15 2012
The Massachusetts Board of Registration in Medicine recently released final revised physician licensing and discipline regulations, effective February 1, 2012.

Useful IP strategies for the pharmaceutical industry
Adli Law Group P.C February 15 2012
The importance of having valid, enforceable patent protection is certainly essential, and the pharmaceutical industry knows this all too well.

Highly anticipated biosimilar draft guidance issued
Ballard Spahr LLP February 15 2012
The U.S. Food and Drug Administration issued three draft guidance documents on February 9 that provide the first guidance for biosimilars—molecules that are “copies” of approved biological molecules (reference products).

FDA’s draft guidance on biosimilar product development and intellectual property issues
Patton Boggs LLP February 15 2012
On February 9, 2012, the U.S. Food and Drug Administration (FDA) released draft guidelines regarding biosimilar product development.

Board rejects appellants’ assertion that the examiner’s proposed combination renders the prior art unsatisfactory for its intended purpose
Oblon Spivak McClelland Maier & Neustadt PC February 15 2012
In Ex parte Schmitt, (Case No. 2010-011741, in Application Serial No. 11/387,678, decision issued February 14, 2012), the issue on appeal was whether the Examiner erred in asserting that a combination of Babula, Redgate, and Lavery renders obvious independent claim 20.

EMTALA and hospital inpatients: CMS keeps status quo for general rule, but asks for further comment on receiving hospitals with specialized capabilities
Arnall Golden & Gregory LLP February 15 2012
On February 2, 2012, the Centers for Medicare & Medicaid Services published a notice in the Federal Register, indicating that it will maintain the current Emergency Medical Treatment and Labor Act (EMTALA) regulations that provide a hospital’s EMTALA obligation ends when it admits, in good faith, an individual with an emergency medical condition as an inpatient so as to provide stabilizing treatment.

FDA issues long-awaited draft guidance documents regarding biosimilars
Brinks Hofer Gilson & Lione February 15 2012
On February 9, 2012, the U.S. Food and Drug Administration (FDA) issued three draft guidance documents relating to the implementation of the Biologics Price Competition and Innovation (BPCI) Act of 2009, which created an abbreviated licensure pathway under section 351(k) of the Public Health Service (PHS) Act for biosimilar products.

OIG releases additional compliance podcast on OIG’s top compliance issues
Bricker & Eckler LLP February 15 2012
On February 13, 2012 the Office of Inspector General (OIG) of the Department of Health and Human Services released of its tenth compliance podcast on “How to report suspected fraud to OIG.”

To linsanity and beyond (to the Tierney case)
Dechert LLP February 15 2012
The case we’d like to discuss, Tierney v. AGA Medical Corp., No. 4:11CV3098 (D. Neb), has two recent opinions that contain so many things that we like that discussing it isn’t difficult at all.

CMS releases proposed rule on PPACA’s 60-day report and repay requirement
Faegre Baker Daniels February 15 2012
Yesterday CMS released a proposed rule implementing Section 6402 of PPACA (the Proposed Rule), which requires Medicare and Medicaid overpayments to be reported and repaid with 60 days.

Health care reform update - February 13, 2012
Mintz Levin Cohn Ferris Glovsky and Popeo PC February 14 2012
Today, President Obama and top officials unveiled the administration’s FY 2013 federal budget totaling $3.8 trillion.

Final regulations issued for summary of benefit coverage – effective date delayed
Ropes & Gray LLP February 14 2012
On Thursday, February 9, 2012, the Departments of Labor, Treasury, and Health and Human Services (collectively, the “Departments”) issued final regulations providing standards for the new, comprehensive benefits summary and uniform glossary required under the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act (collectively, the “Affordable Care Act”).

First state attorney general action under HITECH
Proskauer Rose LLP February 14 2012
On January 19, 2012, Minnesota Attorney General Lori Swanson exercised her authority under the HITECH Act by filing a lawsuit against a business associate for the failure to protect protected health information (PHI) and for the failure to disclose the extent to which PHI was utilized.

CMS releases information on physician self-referral prohibition exception process for physician-owned hospitals
Reed Smith LLP February 14 2012
The final CY 2012 Medicare Outpatient Prospective Payment System (OPPS) final rule implemented a statutory mandate that CMS develop an exceptions process related to the ACA’s prohibition on expanding an existing physician-owned hospital’s facility capacity.

Drug and device MDL update
Dechert LLP February 14 2012
Several years ago, we decided to try to name the drug and device mass torts.

An update on medical loss ratio issues
Dorsey & Whitney LLP February 14 2012
As part of President Obama’s federal health care reform program, the Patient Protection and Affordable Care Act (Pub. L. 111-148) enacted on March 23, 2010 and the Health Care and Education Reconciliation Act (Pub. L. 111-152) enacted on March 30, 2010 (collectively, “ACA”) amended the Public Health Service Act to establish minimum “medical loss ratio” (“MLR”) standards that health insurance issuers must meet.

Final regulations address summary of benefits and coverage
Ballard Spahr LLP February 14 2012
The Affordable Care Act (ACA) requires group health plans and health insurers to prepare and distribute a brief, uniform summary of benefits and coverage (SBC) that aims to provide individuals with a better understanding of the health coverage offered under an arrangement and a basis of comparison with other health plans and policies.

Where is the CIA? – Recent pharmaceutical and hospital False Claims Act settlements raise the question of whether a presumption against corporate integrity agreements exists for certain categories of conduct
Faegre Baker Daniels February 14 2012
In the most recent of a long line of False Claims Act (FCA) whistleblower settlements involving allegations of shenanigans with government price reporting metrics, late last week Dava Pharmaceuticals, Inc. agreed to pay the United States $11 million to settle claims that it misreported prices in order to reduce its Medicaid Drug Rebate liability.

Biosimilars: draft guidance documents issued by FDA
Haynes and Boone LLP February 14 2012
The new abbreviated regulatory approval pathway for “biosimilar” and “interchangeable” types of biologic drug products was implemented in the Biologics Price Competition and Innovation Act of 2009 as part of the Patient Protection and Affordable Care Act of 2010.

New requirements for informed consent effective March 7, 2012
Barnes & Thornburg LLP February 14 2012
In the Federal Register of January 4, 2011 (76 FR 256), the FDA published a final regulation amending the current informed consent regulation to require that informed consent documents and processes for applicable drug and device clinical trials include a specific statement that the trial information will be submitted for inclusion in the clinical trial registry data bank maintained by the National Institute of Health/National Library of Medicine.

Obama administration issues final rules on ACA summary of insurance benefits/uniform glossary provisions
Reed Smith LLP February 14 2012
On February 14, 2012, the Departments of Health and Human Services (HHS), Labor, and Treasury published final rules designed to help consumers understand and evaluate their health insurance options, as mandated by the ACA.

President releases FY 2013 budget; changes proposed for federal health care programs
Arent Fox LLP February 14 2012
Yesterday, the President released a $76.4 billion budget proposal to fund federal health care programs.

President Obama proposes FY 2013 budget
Reed Smith LLP February 14 2012
On February 13, 2012, President Obama released his proposed fiscal year (FY) 2013 budget.

HIPAA privacy and security audits begin: enforcement measures may follow
Haynes and Boone LLP February 14 2012
The Office for Civil Rights (OCR) of the U.S. Department of Health and Human Services has begun the pilot phase of HIPAA privacy and security audits of health care providers, health insurers and health care clearinghouses (“covered entities”) to assess HIPAA compliance efforts.

CMS guidance to states on capitated financial alignment demonstration plans
Reed Smith LLP February 13 2012
In July 2011, CMS announced it was allowing states to test two new financial models intended to improve care coordination and reduce costs for individuals enrolled in both Medicare and Medicaid.

Parallel, not perfect
Vorys Sater Seymour and Pease LLP February 13 2012
Walker v. Medtronic is another new case interpreting Riegel.

Health care
Patton Boggs LLP February 13 2012
Conference Committee members met again this week to negotiate the extensions bill including the Medicare physician fee fix.

FDA issues draft guidance documents to implement the Biologics Price Competition and Innovation Act of 2009
Duane Morris LLP February 13 2012
On February 9, 2012, the U.S. Food and Drug Administration (FDA) issued eagerly anticipated draft guidance documents on biosimilar product development in three installments, collectively the "Biosimilar Draft Guidances".

GAO focuses on Medicare Advantage (MA) risk scores
Reed Smith LLP February 13 2012
A recent GAO report, "Medicare Advantage: CMS Should Improve the Accuracy of Risk Score Adjustments for Diagnostic Coding Practices," examines differences in diagnostic coding between MA and Medicare fee-for-service plans.

What's new for the week of February 13, 2012
Bricker & Eckler LLP February 13 2012
Published in the February 16, 2012 Federal Register, proposed rule requiring providers and suppliers receiving funds under the Medicare program to report and return overpayments by the later of the date which is 60 days after the date on which the overpayment was identified; or any corresponding cost report is due, if applicable.

Georgia DCH publishes final regulations and application materials for Assisted Living Communities
Arnall Golden & Gregory LLP February 13 2012
The Georgia Department of Community Health (DCH) has published final regulations and application materials governing the new licensure category for Assisted Living Communities (ALC).

Affirmative action update: National Defense Authorization Act relieves TRICARE subcontractors of affirmative action obligations
Godfrey & Kahn February 13 2012
On December 31, 2011, President Obama signed the National Defense Authorization Act (NDAA) for fiscal year 2012.

CMS call on claims-based reporting under PQRS, E-Prescribing Program
Reed Smith LLP February 13 2012
CMS is hosting a National Provider Call on claims-based reporting for the Physician Quality Reporting System and Electronic Prescribing Incentive Program on February 21, 2012.

Researchers allege “modest positive association” between soda consumption and risk of pancreatic cancer
Shook Hardy & Bacon LLP February 10 2012
A recent pooled analysis from 14 prospective cohort studies has reportedly confirmed “a suggestive, modest positive association” between sugarsweetened carbonated beverage (SSB) consumption and increased pancreatic cancer risk.

Diet soft drinks reportedly associated with increased vascular risk
Shook Hardy & Bacon LLP February 10 2012
A recent study has allegedly linked diet soft drink consumption with an increased risk of vascular events.

FDA finalizes guidance on prescription drug product name placement, size and prominence in advertising and promotional labeling
Hunton & Williams LLP February 10 2012
In late January, the U.S. Food and Drug Administration (“FDA”) announced a final guidance document entitled “Guidance for Industry: Product Name Placement, Size, and Prominence in Advertising and Promotional Labeling.”

FDA issues “biosimilars” draft guidelines
Nutter McClennen & Fish LLP February 10 2012
On February 9, 2012, the U.S. Food and Drug Administration (FDA) issued three draft guidance documents– the first since the Biologics Price Competition and Innovation Act passed in March 2010 – for the development of biosimilars.

Attention HIPAA business associates: time has run out on security rule compliance
Poyner Spruill LLP February 10 2012
On January 19, the Minnesota Attorney General (the AG) filed a lawsuit accusing Accretive Health of various violations of HIPAA and Minnesota state law

CMS says: no need to revise EMTALA to apply to inpatients
Quarles & Brady LLP February 10 2012
On Thursday, February 2, 2012, CMS announced that EMTALA will not be amended to apply to inpatients.

House Select Committee on the Certificate of Need process takes action
Poyner Spruill LLP February 9 2012
The House Select Committee on the Certificate of Need (CON) Process and Related Hospital Issues recently began deliberating the wide-ranging issues raised by interested parties – primarily hospitals and hospital-based health care systems - in public hearings that took place across the state this past Fall.

FDA and medical devices industry reach tentative agreement on user fees
Barnes & Thornburg LLP February 7 2012
The FDA recently announced that it has reached a tentative agreement with the medical device industry (represented through trade associations) on user fees, performance goals, and other matters for the period 2013-17.

DSM may narrow the definition of autism
Cole Schotz Meisel Forman & Leonard PA January 23 2012
The New York Times reported last week that the American Psychiatric Association, which publishes the Diagnostic and Statistical Manual of Mental Disorders, or D.S.M., is expected to narrow the definition of autism in its next edition.

Information Technology

Court allows claim against employees for erasing work documents on personal computers
Dechert LLP February 21 2012
In Executive Security Management, Inc. v Dahl, No. 09-9273, 2011 WL 5570106 (C.D. Cal. Nov. 15, 2011), the U. S. District Court for the Central District of California denied summary judgment and permitted an employer’s claims pursuant to the Computer Fraud and Abuse Act and the Electronic Communications Privacy Act to survive summary judgment.

The right to be deleted
Foley Hoag LLP February 20 2012
If you haven't Googled yourself in a while, this might be a good time.

Massachusetts regulations to protect consumer personal information contain March 1, 2012 deadline
Morgan Lewis & Bockius LLP February 17 2012
The strict Massachusetts data privacy and security regulations (201 C.M.R. 17) that took effect March 1, 2010 are designed to protect personal information of Massachusetts residents (including the combination of an individual’s name with financial, bank or credit card account, driver’s license, or social security numbers).

ALJ Essex grants Microsoft’s motion for summary determination of Barnes & Noble’s patent misuse defense in Certain Handheld Electronic Computing Devices (337-TA-769)
Oblon Spivak McClelland Maier & Neustadt PC February 17 2012
On February 13, 2012, ALJ Theodore R. Essex issued the public version of Order No. 32 (dated January 31, 2012) granting Microsoft’s Motion for Summary Determination, thereby eliminating an affirmative defense of patent misuse raised by Barnes & Noble, Inc. and barnesandnoble.com (collectively, “Barnes & Noble”) in Certain Handheld Electronic Computing Devices, Related Software, And Components Thereof.

Lawmakers question Apple on iPhone privacy issue
Paul Weiss Rifkind Wharton & Garrison LLP February 17 2012
Two members of the House Energy and Commerce Committee—Representatives Henry Waxman and G.K. Butterfield—asked Apple, Inc. on Wednesday to provide details on the security of the iPhone iOS operating system in the wake of reports indicating that the “Path” iPhone app automatically uploads user address book information onto Path servers without the knowledge or consent of subscribers.

HIPAA/HITECH Act privacy rule coming soon?
Alston & Bird LLP February 17 2012
It is being widely reported that the HIPAA/HITECH Act Omnibus Final Rule will be issued in March 2012.

Massachusetts data protection law: third-party provision effective March 1
Davis Wright Tremaine LLP February 17 2012
Effective March 1, 2012, any company, wherever located, that is holding the “personal information” of Massachusetts residents must amend its existing vendor contracts to require compliance with Massachusetts data security regulations.

The proposed “Cybersecurity Act of 2012” would impact owners and operators of critical infrastructure
Mayer Brown LLP February 17 2012
The Cybersecurity Act of 2012 (the Act) was introduced on February 14, 2012, by Senators Joe Lieberman, Susan Collins, and Dianne Feinstein.

FTC reports that many mobile apps may not be COPPA compliant
Pillsbury Winthrop Shaw Pittman LLP February 17 2012
On Thursday the Federal Trade Commission released a staff report titled, "Mobile Apps for Kids: Current Privacy Disclosures Are Disappointing," in which the FTC criticized companies for failing to properly disclose to parents how the companies are collecting personal data through mobile applications ("apps") aimed at young children.

Naaco Materials Handling Group, Inc. v. Lilly Co., No. 11-2415 AV, 2011 WL 5986649 (W.D. Tenn. Nov. 16, 2011)
Gowling Lafleur Henderson LLP February 17 2012
Motion by the plaintiff to prevent further spoliation by the defendant.

FTC report raises privacy questions about mobile apps for children
Kelley Drye & Warren LLP February 16 2012
This morning, the FTC issued a report showing the results of a survey of mobile apps for children.

FTC disappointed with privacy on kids’ mobile apps
Foley & Lardner LLP February 16 2012
Today, the FTC staff released a Report which raised concerns about the privacy polices and practices of mobile apps for children.

Episode 54: cloud computing and the cultural clash of privacy regulation
Duane Morris LLP February 16 2012
TechLaw10, a 10-minute audio podcast update, is part of Duane Morris' continuing series of podcasts on technology law issues from the firm's Information Technologies and Telecom practice group.

FTC releases report that privacy disclosures in kids’ mobile applications inadequate
Winston & Strawn LLP February 16 2012
The Federal Trade Commission released a report today showing the details of a survey of privacy disclosures and mobile apps for children.

Mobile device privacy subject of new legislation
Manatt Phelps & Phillips LLP February 16 2012
In late January, Congressman Ed Markey (D-Mass.) released a draft bill that would require mobile companies to obtain prior, express consent from users before monitoring software can be installed on their mobile phones.

FTC calls disclosures for kids’ apps “disappointing”
Venable LLP February 16 2012
On February 16, The Federal Trade Commission (“FTC”) released a staff report on the data collection practices of mobile applications, or apps, targeted at children.

The Cybersecurity Act of 2012--what does it mean?
Baker & Hostetler LLP February 15 2012
Yesterday, Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman (ID-Conn.), Ranking Member Susan Collins (R-Maine), Commerce Committee Chairman Jay Rockefeller (D-W.Va.), and Select Intelligence Committee Chairman Dianne Feinstein, D-Ca. introduced The Cybersecurity Act of 2012.

Expanding the scope of security testing
Experian® Data Breach Resolution February 15 2012
Continual testing is one of the main tenants of data breach prevention.

Massachusetts regulation requires service provider contracts to include security provisions by March 1, 2012
Seyfarth Shaw LLP February 15 2012
Companies that provide “personal information” regarding Massachusetts residents in electronic or written form to a service provider will need to make sure that their service contracts require the service provider to use appropriate security measures to protect the information.

Bipartisan Senate cybersecurity bill introduced amid partisan opposition
Baker & Hostetler LLP February 15 2012
The Cybersecurity Act of 2012, S. 2105, was introduced yesterday by Senators Joe Lieberman (I-VT), Susan Collins (R-ME), Diane Feinstein (D-CA), and John Rockefeller (D-WV).

ABA resolution urges U.S. courts to respect foreign data privacy laws
Sidley Austin LLP February 15 2012
A recent resolution adopted by the American Bar Association seeks to help reconcile U.S. civil discovery obligations with international privacy and ‘‘blocking’’ laws.

Tracing the comet's tail: metadata is now discoverable information in litigation
Ward and Smith PA February 15 2012
Much like tracing a comet's tail will eventually lead one's eyes to the comet, metadata are bits of information that can be traced to a piece of electronically stored information.

Third Circuit sustains "data collection provision" of NJ's unclaimed property law
Baker & Hostetler LLP February 14 2012
The Third Circuit recently affirmed a district court’s decision refusing to enjoin an amendment to the New Jersey Unclaimed Property Act (the “Act”) which requires issuers of stored value cards (“SVCs”) to obtain the name and address of purchasers of SVCs and to maintain a record of the zip code of each purchases.

An example of the right way to handle a data breach: Motorola Xoom
Fox Rothschild LLP February 14 2012
You may have read that Motorola announced on February 3rd that it inadvertently sold around 100 refurbished Motorola Xoom tablets through Woot.com without putting the tablets through the typical process of doing a factory reset and wiping any personal data that may have been left by the original owner(s).

Is your company at risk for a security breach?
Duane Morris LLP February 14 2012
Business want to know whether they are potential targets for security breaches, and if so, they seek to identify the types of electric records that may be at risk.

Important March 1st deadline for those who share financial account or other personal information about Massachusetts residents with vendors
Choate Hall & Stewart LLP February 13 2012
Organizations sharing financial account or other personal information about Massachusetts residents with vendors need to be aware of a March 1, 2012 deadline concerning Massachusetts data privacy and security regulations.

U.S. courts: consider and respect foreign data protection and privacy laws!
LeClairRyan February 13 2012
Generally, parties involved in cross-border litigation in U.S. courts have been faced with a difficult choice -- a "Hobson's Choice" -- whenever compliance with U.S. discovery demands has raised conflicting legal obligations in non-U.S. jurisdictions.

2012: the year of privacy
Ice Miller LLP February 13 2012
Representative Lamar Smith introduced the Stop Online Piracy Act into the House on October 26, 2011.

Motion filed to stop Google's new terms of service (ToS) and privacy policies
Gardere Wynne Sewell LLP February 12 2012
The Electronic Privacy Information Center (EPIC) filed a Motion to enjoin Google from implementing new ToS and Privacy Policies on March 1, 2012.

Warrantless search of digital camera constitutes an unreasonable search, court holds
Steptoe & Johnson LLP February 11 2012
A federal district court in Oregon last month ruled that the warrantless search of a digital camera was not permitted pursuant to the “search-incident-to arrest” exception from the requirement for a warrant, and therefore violated the Fourth Amendment.

Court orders defendant to decrypt her computer
Steptoe & Johnson LLP February 11 2012
A federal court in Colorado has ordered a criminal defendant to produce an unencrypted version of her laptop’s hard drive for review by the government.

Huge but probably unenforceable award of damages for trade-mark infringement
Borden Ladner Gervais LLP February 9 2012
It’s a bit of a shame that those e-mail requests for (financial) assistance from the widows of deposed third-world dictators seem to have dried up; at least to start with, they were rather entertaining.

More legal issues about privacy (and GPS)
Gardere Wynne Sewell LLP February 9 2012
Privacy continues to be hot news, just look at Facebook’s S-1 disclosures in its Initial Public Offering (IPO) which among a myriad of “Risk Factors” includes this statement about privacy laws.

Insolvency & Restructuring

Court affirms denial of “contingent” asbestos claims against liquidation estate of excess insurer
Jorden Burt LLP February 20 2012
A court affirmed the denial of W.R. Grace & Co.’s asbestos insurance claims against the liquidation estate of Grace’s insolvent excess-of-loss insurer, on the ground that Grace failed to submit timely “absolute” claims under New Jersey’s version of the Uniform Insurers Liquidation Act.

Suspected misconduct prompts creditors to seek appointment of bankruptcy examiners
Wiley Rein LLP February 17 2012
In late 2011, bondholders in the bankruptcy case of power company Dynegy Holdings, LLC moved for the appointment of a bankruptcy examiner to investigate certain transactions that occurred immediately prior to the filing of Dynegy's bankruptcy petition.

Washington Mutual's plan of reorganization has been confirmed
Fox Rothschild LLP February 17 2012
At approximately 10:15 this morning, Judge Walrath of the Delaware Bankruptcy Court made an oral ruling confirming Washington Mutual's chapter 11 plan of reorganization.

Secured creditor’s right to credit bid in a sale conducted under a plan
Blank Rome LLP February 16 2012
For decades there have been few, if any, significant opinions that considered a secured creditor’s right to credit bid its claim in an asset sale under a Chapter 11 plan.

A review of healthcare bankruptcies: 2011
Baker & Hostetler LLP February 16 2012
The healthcare industry was ailing in 2011.

Preference litigation pursuant to Chapter 128 of the wisconsin statutes vs. preference litigation pursuant to the United States Bankruptcy Code
Reinhart Boerner Van Deuren SC February 15 2012
Many creditors have had the unfortunate experience of receiving a demand letter or adversary complaint alleging that they received avoidable transfers—commonly known as "preferential payments" or "preferences"—during the 90 days preceding a customer's federal bankruptcy filing.

LSP Energy files petitions for bankruptcy in Delaware
Fox Rothschild LLP February 15 2012
On February 10th, electricity operator LSP Energy LP ("LSP") filed chapter 11 petitions for bankruptcy in the United States Bankruptcy Court for the District of Delaware.

New bankruptcy rules impact proofs of claim
Baker Donelson Bearman Caldwell & Berkowitz PC February 14 2012
On December 1, 2011, critical changes to the Federal Rules of Bankruptcy Procedure took effect.

State guaranty association can pursue court action seeking reimbursement for improperly paid claims
Jorden Burt LLP February 14 2012
Reliance Insurance Company in Liquidation petitioned a Pennsylvania state court for a declaratory judgment holding that Aramark Corporation must reimburse certain state guaranty associations (“GAs”) for claims allegedly improperly paid to Aramark and subsequently presented to the Reliance Estate by the GAs for payment.

An [in]subordinate lender: Delaware Bankruptcy Court dismisses mezzanine borrower's chapter 11 case for bad faith
Cole Schotz Meisel Forman & Leonard PA January 24 2012
In an opinion that has wide-ranging implications for the structured finance industry, the Delaware bankruptcy court recently dismissed a mezzanine borrower’s chapter 11 case as a bad faith filing pursuant to section 1112(b) of the Bankruptcy Code.

Insurance & Reinsurance

White Mountain Re voluntarily dismisses asbestos reinsurance action against Travelers Casualty
Jorden Burt LLP February 21 2012
We last posted on a reinsurance dispute between White Mountains Re and Travelers Casualty on May 18, 2011.

Sixth Circuit vacates class certification based on preclusion, interprets Wal-Mart
Bricker & Eckler LLP February 20 2012
The Sixth Circuit, in Gooch v. Life Investors Ins. Co. of Am., Cases Nos. 10-5003/5723 (6th Cir. Feb. 10, 2012), has vacated a Middle District of Tennessee decision granting class certification, remanding the case for further proceedings.

FIO misses deadline to submit federally-mandated report to congress
Edwards Wildman Palmer LLP February 17 2012
The Federal Insurance Office (FIO) has missed its deadline to release its widely-anticipated report to Congress on how to improve and modernize insurance regulation in the U.S.

Texas court considers prior knowledge condition in D&O policy
Traub Lieberman Straus & Shrewsberry LLP February 17 2012
In the recent decision in Deer Oaks Office Park Owners Ass'n v. State Farm Lloyds, 2012 U.S. Dist. LEXIS 19240 (W.D. Tex. Feb. 15, 2012), the United States District Court for the Western District of Texas had occasion to consider a prior knowledge condition in a directors and officers liability policy.

PLUS D&O Symposium 2012 – Day 2 fourth panel: cross-fire
Edwards Wildman Palmer LLP February 16 2012
The 2012 PLUS D&O Symposium concluded with a roundtable discussion, where brokers and carrier representatives offered their frank opinions on a host of topics confronting the industry.

Employee benefit plan alert
Taylor English Duma LLP February 15 2012
The DOL, the IRS and HHS were active in the first two weeks of February.

Dodd-Frank does not preempt all California's § 1011(c) reinsurance approval requirements applicable to foreign insurers
Barger & Wolen LLP February 14 2012
Prior to the Dodd-Frank Act, California Insurance Code § 1011(c) required all California-admitted insurers to obtain prior approval from the California Department of Insurance for any reinsurance transaction that exceeded a 50% or 75% threshold.

Health care
Patton Boggs LLP February 13 2012
Conference Committee members met again this week to negotiate the extensions bill including the Medicare physician fee fix.

Court must consider extrinsic evidence to determine ambiguity under California law
Wiley Rein LLP February 13 2012
The United States District Court for the Central District of California has denied opposing motions for judgment on the pleadings seeking declarations as to coverage for lawsuits and other matters under directors and officers liability insurance policies because the court determined that it would have to consider extrinsic evidence before analyzing whether the policy language at issue was unambiguous.

The Sixth Circuit vacates class certification and clarifies Wal-Mart's application to declaratory judgments based on contract interpretation
Squire Sanders February 13 2012
On Friday, the Sixth Circuit vacated an order from the District Court for the Middle District of Tennessee, precluding class certification, in large part, due to an intervening and nearly identical class action settlement affirmed by the Arkansas Supreme Court (Runyan Settlement).

Insurer did not waive right to rescind policy
Wiley Rein LLP February 13 2012
A federal district court, applying Ohio law, has held that an insurer did not waive its right to rescind a professional liability policy issued to an accountant and his firm when the insurer knew of the accountant's potential involvement in a fraudulent investment scheme but still issued the policy and then canceled it after complying with a 90-day notice of cancellation provision.

New York appellate court requires prompt disclaimer despite insurer's ongoing coverage investigation
LeClairRyan February 3 2012
Overruling its prior decisions, New York's Appellate Division First Department recently held that Section 3420(d) of New York Insurance Law precludes an insurer from delaying notice of disclaimer on a ground that the insurer knows to be valid, even if the insurer's coverage investigation is not complete.

Telstar 14/Estrela do Sul-2 claim resolved
Milbank, Tweed, Hadley & McCloy LLP January 31 2012
Loral Space & Communications Inc. announced in a January 17 filing with the U.S. Securities & Exchange Commission that its satellite fleet operator subsidiary, Telesat Canada (co-owned with PSP Investments, the Canadian pension fund) received $132.7m in insurance proceeds as settlement for the Telstar 14R/Estrela do Sul 2 partial loss claim following its solar array deployment failure in May 2011.

Intellectual Property

Potential sanctions for early discovery inconsistent with pleadings
Holland & Knight LLP February 20 2012
Judge Manning held in abeyance Doe defendant's motion to quash a subpoena issued to its alleged internet service provider and Doe's motion to dismiss the case for lack of personal jurisdiction.

Importers beware: rise in the number of intellectual property cases filed at the USITC
White & Case LLP February 9 2012
A record high number of new intellectual property-related cases were filed at the United States International Trade Commission (“USITC”) during FY 2011.

Internet

The right to be deleted
Foley Hoag LLP February 20 2012
If you haven't Googled yourself in a while, this might be a good time.

Tweets, Twitter and trade secrets: who owns an employee's Twitter followers?
Lowenstein Sandler PC February 16 2012
As the professional use of social media continues to proliferate, it was only a matter of time before this question reached the courts: who owns an employee’s Twitter followers amassed on an account that was created as part of the employee’s job function?

How much for that Twitter account in the window?
Manatt Phelps & Phillips LLP February 16 2012
A new lawsuit has companies wondering: Who owns a Twitter account?

Online gambling: the geolocated road ahead
Latham & Watkins LLP February 16 2012
On December 23, 2011, the United States Department of Justice (DOJ) publicly released a legal opinion which reversed its long-held stance that the federal Wire Act (Wire Act) outlaws almost all forms of internet gambling.

Court finds Kinect and Kinbox not kinected
Weintraub Genshlea Chediak Law Corporation February 10 2012
Kinbook, LLC, an online social networking company, recently sued Microsoft for unfair competition and reverse trademark infringement in United States District Court.

To “Like” or not to “Like”?
Arent Fox LLP February 9 2012
We all want to be “Liked” and have others “Like” us.

Leisure & Tourism

Will California legalize alcohol-related sweepstakes?
Manatt Phelps & Phillips LLP February 16 2012
The lone state to currently ban residents of legal drinking age from ent