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Member Publications
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The Legalities of Competition in Water Markets – Comparing Scotland with England and Wales.
Shepherd and Wedderburn, May 2008, Scotland
On 1 April 2008, the market for non-household water and sewerage services in Scotland 'went live'. For the first time, business customers were able to choose their water and sewerage retailer in much the same way as they are accustomed to doing for other utility services, such as telecommunications, electricity and gas...
| Fiscal Year 2009 H-1B Cap News
Nixon Peabody LLP, May 2008, New York
Predictions were correct, and all H-1B visas for fiscal year 2009 (beginning 10/1/2008) were taken during the initial filing period. Nearly 163,000 H-1B petitions were received during the filing period ending on April 7, 2008. More than 31,200 of those petitions were for the advanced degree exemption.On April 8th, U.S...
| Second Circuit Creates Doubt About Arbitration Clauses and Class Action Waivers in Credit Card Contracts
Nixon Peabody LLP, May 2008, New York
The Second Circuit held that the plaintiffs, holders of credit cards issued by various defendant banks, showed the necessary "injury in fact" to establish Article III standing in their allegations that mandatory arbitration clauses found in credit card contracts were the product of illegal collusion among credit providers. The case has been remanded for decision of other issues (including whether the plaintiffs adequately alleged an antitrust injury)...
| Labour Shortages and Foreign Workers
Lavery, de Billy, L.L.P., May 2008, Quebec
Difficulties in recruiting skilled employees and the labour shortage in some sectors are currently a source of headaches for many businesses. In this context, one solution may be to consider hiring foreign workers.In a press release published in September 2007, the Fédération des chambres de commerce du Québec noted that migrant workers are an indispensable asset to the competitiveness of Quebec businesses...
| Delaware Courts Interpret Advance Notice Bylaws Narrowly
Nixon Peabody LLP, April 2008,
Proxy contests in the 2008 proxy season have resulted in two significant Delaware Chancery Court decisions interpreting the language of advance notice bylaws. In both cases, the Chancery Court narrowly interpreted the advance notice bylaws and held that they did not apply to the proxy contests conducted by the dissident shareholders...
| Affordable Housing Tax Credits Do Not Require Payment of Prevailing Wages in California
Nixon Peabody LLP, April 2008,
An intermediate California appellate court recently ruled that granting government tax credits to facilitate the construction of a low-income housing project did not bring the project within the purview of California’s prevailing wage law. (State Building & Construction Trades Council of California v. Duncan, Cal. Ct. of App., Apr. 23, 2008)...
| Potential Criminal Liability For Subprime Lending Practices
Nixon Peabody LLP, April 2008, United States of America
ABC Bank is a publicly traded lender specializing in consumer loans to first-time homebuyers in the southeastern United States. For the past three years, ABC Bank has posted record revenues from its operations in central Florida’s hot real estate market. In 2005, ABC Bank decided to focus its efforts on new- loan origination...
| Bill Introduced in Congress to Extend Collective Bargaining Rights to Graduate Assistants and Other Student Workers
Nixon Peabody LLP, April 2008,
On April 17, 2008, Rep. George Miller and Sen. Edward M. Kennedy introduced a bill that would extend collective bargaining rights to graduate assistants and other student workers. The proposed legislation would effectively overturn the National Labor Relations Board’s 2004 ruling in Brown University that graduate assistants are not “employees” under the National Labor Relations Act and do not have the right to union representation...
| Use of the Internet in Marketing and Distributing Hedge Funds in Hong Kong
Deacons, April 2008, Hong Kong
The Internet is a growing medium in the marketing of funds in Hong Kong. However, its use as a distribution channel for funds in Hong Kong is still relatively low. This chapter describes the rules applicable to the use of the Internet in marketing and distributing hedge funds in Hong Kong.There are different considerations for funds authorized by the Securities and Futures Commission (SFC) and for unauthorized funds...
| The Regulation of Hedge Funds in Hong Kong
Deacons, April 2008, Hong Kong
A number of leveraged funds, futures and options funds and market neutral funds seeking absolute returns were authorised by the Securities and Futures Commission in Hong Kong (SFC) during the 1990s, although most have since been wound up or deauthorised...
| Structuring a Hedge Fund in Asia Using Offshore Centres
Deacons, April 2008, Hong Kong
The Asian hedge fund industry is comparatively new and small. However, the industry has witnessed phenomenal growth since 2002. The purpose of this book is to assist start-up managers to establish a hedge fund business. To date, a majority of the newly-established funds in Asia have been set up by fund managers or proprietary traders setting up their own business, after a successful career at one of the larger investment houses...
| M&A Executive Insights 2008
Nixon Peabody LLP, April 2008, United States of America
Reflecting differing perceptions of the impact of the credit crunch, strategic buyers appear to be more bullish on the outlook for the mergers and acquisitions market than their private equity counterparts, according to our M&A Executive Insights 2008 survey...
| OSC Publishes Results of Environmental Reporting Compliance Review
Cassels Brock, April 2008, Ontario
On February 27, 2008, the Ontario Securities Commission (the “OSC”) issued a staff notice outlining the results of a targeted review of compliance with disclosure requirements as they relate to environmental matters...
| Exclusive Rights
Cassels Brock, April 2008, Canada
A recent decision of the English Court of Appeal has provided the first authoritative guidance on the nature and scope of a registered community design. Even though the Canadian Industrial Design Act contains different wording concerning design infringement, a Canadian court could be influenced by this English decision...
| Tax Benefits For Inland Regions
PLMJ - A.M. Pereira, Sáragga Leal, Oliveira Martins, Júdice e Associados, April 2008,
1. The recently published Decree-Law 55/2008 of 26 March has set out the regulatory provisions necessary for implementing incentive measures for the speedier recovery of areas in Portugal that suffer most from typical inland regional problems, as provided for in the Tax Benefits Statute (EBF)...
| Stoneridge Decision
Dykema, April 2008, Michigan
The United States Supreme Court's recent decision in Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc. et al. is one of the most important securities law decisions handed down by the Supreme Court in many years. It establishes new guidelines in cases where investors seek to hold third parties (such as vendors, as well as attorneys or accountants) liable for participating in securities fraud...
| Congress Enacts Significant Amendments to the Family and Medical Leave Act
Potter Anderson & Corroon LLP, April 2008, Delaware
On January 28, 2008, President Bush signed the National Defense Authorization Act (“NDAA”), which includes amendments to the Family and Medical Leave Act of 1993 (“FMLA”) that create two entirely new leave classifications for specified family members of military service personnel...
| Walking the Green Walk
Nixon Peabody LLP, April 2008, United States of America
These days every law firm seems to talk the talk about “going green,” but Nixon Peabody wanted action. So last November, the firm named Carolyn Kaplan, a counsel in the firm’s Boston office, as chief sustainability officer. Kaplan looks for ways to make the firm’s own operations more environmentally friendly and for opportunities to work with clients on sustainability efforts...
| New Labour Standards: Authorized Absences due to a Criminal Offence, the Disappearance of a Child or the Suicide of a Close Relative
Lavery, de Billy, L.L.P., April 2008, Quebec
The Act respecting labour standards (hereinafter the “ALS”) was amended recently concerning absences due to sickness or accident and absences for family or parental reasons...
| Budget Should Address Crippling VAT Penalties on Small Business
Webber Wentzel (incorporating Mallinicks), April 2008, South Africa
Non-compliance with tax laws is not always driven by an intention to evade tax – and yet the harshness of the penalties can cripple a small business, while not addressing the root cause of non–observance.Sometimes, the cause of non-tax compliance is simply ignorance. However, ignorance of the law, as any SARS official will tell you, is no excuse for mistakes in your VAT return...
| The New City of Toronto Lobbying Registry: Losing Sight of the Forest for the Trees
Cassels Brock, March 2008, Ontario
On January 30, 2008, the City of Toronto enacted a by-law ("By-law") to create a lobbyist registry. The By-law's stated purpose is to enhance public confidence in the integrity and impartiality of the City's decision-making processes by making lobbying activities open and accessible to the public...
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Your Contracts: a Systematic and Disciplined Approach is Called for
Lavery, de Billy, L.L.P., March 2008,
Every day, and several times a day, we enter into contracts without knowing it or without considering and controlling their effects. This bulletin provides a brief and non-exhaustive summary to help you better understand, prepare for and monitor your contractual environment...
| Developments in Compulsory Licensing
Tilleke & Gibbins International Ltd., March 2008, Thailand
A little more than a year ago Thailand’s Ministry of Public Health, acting on behalf of a post-coup militaryappointed administration, decided to issue the first set of compulsory licenses on three patented drugs. The three drugs were Merck’s antiretroviral efavirenz (Stocrin®), Abbott Laboratories’ antiretroviral opinavir/ritonavir (Kaletra®) and sanofi-aventis’ heart disease drug clopidogrel (Plavix®)...
| Music Piracy: Persistent Challenges, Potential Solutions
Tilleke & Gibbins International Ltd., March 2008, Thailand
On January 1, 2008, EMI Thailand, the local subsidiary of one of the four largest music labels along with ONYBMG, Warner, and Universal, closed its CD and DVD manufacturing operation in Thailand. This is not good news for the music entertainment industry in Thailand, as not only does it reflect a drastic change of lifestyle of music consumers, but it also demonstrates that copyright piracy remains a major problem...
| Clarity, Novelty and Inventiveness: Keys to Patentability
Tilleke & Gibbins International Ltd., March 2008, Thailand
To obtain patent protection, patent owners are obligated to publicly disclose certain information about the invention. The specification must be explicitly disclosed in a manner sufficiently clear and complete in order to enable a person skilled in the art to understand how to implement and carry out the invention. In 1999, Thai patent application No. 048605 was filed with the Thai Patent Office by a researcher at Chulalongkorn University...
| New Moutargets Counterfeit Drugs in Thailand
Tilleke & Gibbins International Ltd., March 2008, Thailand
The prevalence of counterfeit drugs is on the rise in a large number of countries. World Health Organization statistics estimate that 10% of medicines on the worldwide market are fakes. The same organization pointed to the rapid escalation of the problem on the Internet, as 50% of the drugs supplied in certain countries are counterfeit. Thus, the fight against counterfeit drugs is becoming a highpriority issue all over the world...
| Infrastructure 2008: An Ambitious Agenda
Minter Ellison Rudd Watts, March 2008, New Zealand
2008 promises to be an exciting time for infrastructure delivery is this country given the keenness and genuine goodwill that exists amongst all levels of government, business groups and the wider community.To ensure this opportunity is not missed, a clear and disciplined approach must be taken towards establishing a nation-wide and broadly agreed pipeline of projects that will help address Australia's infrastructure shortfalls...
| Class action and competition law: Toyota wins in the Court of Appeal
Lavery, de Billy, L.L.P., March 2008, Canada
For the first time, the Court of Appeal has rendered a decision on a class action instituted under the Competition Act. A unanimous decision in favour of our client, Toyota Canada Inc. and 37 of its dealers in the Montreal region, was handed down on February 26, 2008...
| New York Court of Appeals Rules That Policyholders Can Seek Consequential Damages in First-party Bad Faith Claims
Hunton & Williams LLP, March 2008, Virginia
In two separate opinions, five to two majority of the New York Court of Appeals ruled that an insured can assert a claim form consequential damages for an insurer’s alleged bad faith breach of a first-party insurance contract. Bi-Economy Market, Inc. v. Harleysville Insurance Company of New York, No. 14 (N.Y. February 19, 2008); Panasia Estates, Inc. v. Hudson Insurance Company, No. 15 (N.Y. February 19, 2008)...
| Planning for the Future:
Changes to the Rules about Forward-Looking Information
Cassels Brock, March 2008, Canada
Forward-Looking Information Effective December 31, 2007, new rules apply to forward-looking information ("FLI") disclosed by an issuer, other than FLI contained in oral statements. Among other things, the new rules apply to: information filed with securities regulators, an issuer's news releases; and an issuer's website and marketing materials...
| Extension Of Tax Benefits Applicable In The Madeira Free Trade Zone
PLMJ - A.M. Pereira, Sáragga Leal, Oliveira Martins, Júdice e Associados, March 2008, Portugal
1. Last Friday saw the publication of Decree-Law 13/2008, of 18 January, which extended the tax regime applicable to companies that register to carry on business in the Madeira Free Trade Zone between 1st January 2007 and 31st December 2013...
| New HUD-Justice joint statement on reasonable modifications under Fair Housing Act
Nixon Peabody LLP, March 2008, New York
Last week, HUD and the Department of Justice released a “Joint Statement on Reasonable Modifications Under the Fair Housing Act” (the Modifications Statement), a companion to the “Joint Statement on Reasonable Accommodations Under the Fair Housing Act” (the Accommodations Statement) issued by HUD and Justice in May 2004...
| The Swedish Code on Corporate Governance is Revised and Will Apply to More Companies
Delphi, March 2008, Sweden
In the beginning of February, the Swedish Corporate Governance Board presented a proposal for a revised Swedish code on corporate governance (the Code).Work on amending the code has been carried out in cooperation with representatives for both OMX Nordic Exchange as well as NGM...
| Analogous Application of the Commercial Agency Act to Distributors of Computer Software
Delphi, March 2008, Sweden
On 4 January, the Supreme Court delivered a decision of principle interest regarding a computer software distributor’s right to severance pay (case no. T 930-06). Through the decision, the court has clarified that the Commercial Agency Act (1991:352) ( “Agency Act”) can be applied analogously to marketing and collecting of orders for computer software, despite the fact that computer software does not constitute goods under the act...
| Tougher Stance on Cartels in New Competition Act
Delphi, March 2008, Sweden
On 21 February 2008, the government presented a proposal for a new Competition Act. The proposal contains a number of new things, of which several aim to make the fight against cartels more efficient. In addition, amendments are proposed to the rules on concentrations. Possibility of avoiding trial through a settlement procedure Currently, the Swedish Competition Authority does not have the authority itself to decide on fines (sw. konkurrensskadeavgift)...
| The Hunt for Alleged Competition Sinners – This Time the Commission Has Gone Too Far
Delphi, March 2008, Sweden
In the middle of January, the European Commission started a sector inquiry into the pharmaceutical industry and in doing so exposed several pharmaceutical companies to dawn raids...
| Changes in the Planning and Building Act
Delphi, March 2008, Sweden
Firstly the act now expressly states that planning and building shall promote good economic growth and effective competition. This change is a clear signal from the legislator that municipalities must not only take into consideration the social and ecological effects in their planning but also the development of commerce and the provision of commercial service...
| Municipality Obliged to Reclaim Unlawful State Aid from Recipient
Delphi, March 2008, Sweden
Are Municipality has been ordered by the European Commission to reclaim the unlawful state aid which the municipality paid to Konsum in Jämtland? The Commission’s decision underlines the importance of governmental authorities, municipalities and county councils monitoring the provisions on state aid in business transactions involving private players...
| New Enterprise Income Tax Law in the PRC
Delphi, March 2008, Sweden
Several major changes to the PRC’s Tax Law have come into effect since 1 January 2008. These include the unification of the income tax treatment of all enterprises (foreign and domestic as well as joint-venture companies), resumption of the previous 20 % withholding tax on outgoing dividends to be paid by foreign investment companies to their foreign parent companies, lower effective income tax rates and introduction of the concept of “resident enterprises”...
| The Vaxholm Case
Delphi, March 2008, Sweden
Not treating a European collective bargaining agreement in the same way as a domestic collective bargaining agreement may be discriminatory according to EC law. Taking industrial action is, in itself, a fundamental right – but to force foreign companies to negotiate salaries without the existence of clear rules on what applies is not justifiable and is in conflict with the proportionality principle...
| New Rules on Liability for Serious Environmental Damage
Delphi, March 2008, Sweden
In the autumn of 2007, the rules in the Environmental Code on liability for environmental damage in the form of pollution were made more stringent. The changes were due to the EC directive on environmental liability (1). The liability of businesses operators and property owners has thus become more extensive. Amendments have, inter alia, been made to chapter 10 of the Environmental Code...
| Doing Business in Argentina: A guide that explains the specifications to bear in mind when doing business in our country.
SMS - San Martin, Suarez y Asociados, March 2008, Argentina
ARGENTINE TAX SYSTEMPOLITICAL CONFIGURATIONThe Republic of Argentina has three levels of Government (Jurisdictions): Nation, Provinces and Municipalities.The government system of the Nation and the Provinces has three powers: The Executive that deals with the Administration, the Legislative in charge of passing the Laws, and the Judiciary responsible for the Administration of Justice...
| A Practical Guide To Conflict of Interest Disclosure Laws
Cassels Brock, March 2008, Ontario
The Business Corporations Act (Ontario) "OBCA" and the Canada Business Corporations Act set out requirements for directors and officers in cases of conflict of interest. This article highlights the key steps directors and officers must take to insulate themselves from personal liability...
| Time to Revise Director and Officer Indemnities for OBCA Corporations
Cassels Brock, March 2008,
The retention of directors and officers is often a key concern for corporations. Directors and officers face increasing personal financial exposure, generally in return for modest directorrs fees. It is therefore reasonable for corporations to provide written indemnities, to the extent permitted by law, to its directors, officers and other representatives...
| Balance of Convenience Still Favours Incorporating Federally
Cassels Brock, March 2008,
If a business corporation best serves your needs, you have a number of jurisdictions from which to choose. If your business will have employees reporting for work in Ontario, the choice may be between a business corporation incorporated under the Business Corporations Act ((OBCAA) or one incorporated under its federal counterpart, the Canada Business Corporations Act ((CBCAA)...
| The Manufacturer-Seller’s Warranty in Québec: Still “Distinct”!
Lavery, de Billy, L.L.P., March 2008, Quebec
In late November 2007, the Supreme Court rendered a judgment on the law of sale in Quebec in the case of ABB Inc. v. Domtar Inc.(1) in which it pointed out important differences between Quebec law and the law of the other Canadian provinces regarding limitation of liability clauses...
| New HUD Policy Promises to Facilitate the Use of FHA Mortgage Insurance with Historic Tax Credits and New Markets Tax Credits
Nixon Peabody LLP, March 2008, United States of America
On March 3, 2008, HUD, issued new procedures (the “Master Lease Policy”) which permits the use of master lease ownership structures with FHA multifamily mortgage insurance programs...
| Plan Participant can Sue Under ERISA for Losses to Assets in a 401(k) Account
Nixon Peabody LLP, March 2008, New York
U.S. Supreme Court rules that a participant in a defined contribution pension plan has remedy under Section 502(a)(2) of ERISA for losses to plan assets in an individual 401(k) account due to a breach of fiduciary duty...
| Abusive Tax Planning Yet Again
PLMJ - A.M. Pereira, Sáragga Leal, Oliveira Martins, Júdice e Associados, March 2008, Portugal
1. The long-awaited duty requiring users or promoters of operations and transactions whose sole or principal objective is to obtain tax benefits to communicate such operations or transactions to the tax authorities has finally become law in Decree-Law 29/2008 of 25 February. 2. Due to its excessively wide nature, however, the new antiabuse measure raises some very serious doubts...
| U.S. Court of Appeals for the District of Columbia Circuit Finds that Student Who Was Abused Was Entitled to Multiple Per-Claim Limits
Hunton & Williams LLP, March 2008, Virginia
U.S. Court of Appeals for the District of Columbia Circuit Finds that Student Who Was Abused Multiple Times by Fellow Students Was Entitled to Multiple Per-Claim Limits Because Each Assault Was a Separate “Claim”.In Essex Insurance Co. v. Doe, No. 06-7163, 2008 U.S. App. LEXIS 94 (D.C. Cir. Jan...
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