Legal Updates

Bare Trusts: are they the ‘next big thing’?

The third consultation on Inheritance Tax (IHT) charges for trusts assumes that every individual will have only one settlement nil rate band (SNRB) to put against the periodic charges to IHT of all trusts created in lifetime, or on death, by that individual.  (For more on the new SNRB, see my blog post of 19 June 2014.)
As the SNRB does not renew itself every seven years, the well advised will soon begin to realise that the SNRB is a precious commodity that needs to be preserved and carefully allocated.
The SNRB only needs to be allocated among ‘settlements’ though.  As it seems that Bare Trusts are not settlements for IHT purposes, if the SNRB does come into effect, there will be no need to allocate any SNRB to Bare Trusts.  So, are Bare Trusts about to become all the rage, if you have young children or grandchildren to plan for?  You can save your SNRB to allocate against your other trusts/will trusts instead! 
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The 5 Issues That Trouble Regulators When Evaluating Direct-to-Consumer Telehealth

There can be no question that telehealth has gone mainstream.  The numbers speak volumes. Telehealth companies have been able to raise almost $500 million since 2007 according to a noted venture capital analyst.  A recent study indicated that U.S. employers could save up to $6 billion a year through telehealth.  Per the American Telemedicine Association, more than half of all U.S. hospitals now offer some form of telehealth service.  Some leading analysts estimate that global revenue for telehealth will reach $4.5 billion by 2018, and the number of patients using telehealth services will rise to 7 million by the same year.   I can cite countless examples showing the bullish trajectory of telehealth.  But problems remain.

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Indiana Appellate Court Reverses Non-Compete Injunction Bond Of Only $100

The size of an injunction bond is not a common topic in appellate cases. Accordingly, a recent decision by the Indiana Appellate Court reversing the trial court’s setting of an injunction bond at only $100 in a non-compete case is noteworthy.

In Donald Moss v. Progressive Design Apparel, Inc., the Indiana Appellate Court affirmed a preliminary injunction which restricted a salesman’s ability to call upon customers of his former employer or disclose confidential information. As part of the trial court’s order granting injunctive relief, the trial court found that the enjoined salesman’s foreseeable loss in commissions due to the injunction “might be $60,000, less what he would have in the way of earnings from the extra ten to fifteen hours a week he would have by not selling” to one of his former employer’s customers. Nevertheless, the trial court only required the former employer to post a $100 injunction bond, which the Appellate Court held was insufficient.

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Australian Federal Government moves on competitiveness and anti-circumvention

The policy space for those in the International Trade, Customs and related agricultural reform field has got much more crowded in the space of the last month!

If I may attempt to summarise

  • On Monday (20 October 2014) the Federal Government released its “Agricultural Competitiveness Green Paper”.  To view this paper click here.  The paper is a discussion of possible options proposed by stakeholders for improving the competitiveness of the agricultural sector.  The Government has invited stakeholders to comment on the Green Paper by 12 December 2014.  The finalised policy directions for improving the profitability and competitiveness of the agriculture sector will then be detailed in a “White Paper” as a precursor to actual reform. More…
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Sale of a leased property – pleasure or pain?

In the property market it is usual to sell such commercial or residential real estates that are leased out. On the basis of the new Civil Code, the seller of such property will not be relieved, by the sale, from its liability towards the tenants. If the purchaser breaches any of its obligations towards the tenants, then the seller may also be held liable, even if the property had been sold many years ago. More…

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Ontario Court Upholds Citizenship Oath’s Allegiance to the "Queen of Canada"

The Canadian Citizenship Act (“Act”) requires permanent residents who wish to become Canadian citizens to swear an oath or make an affirmation in the following form:
I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada Her Heirs and Successors and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen. 
In the case of McAteer v. Canada (Attorney General), 2014 ONCA 578, the appellants objected to the portion of the oath that referred to being faithful and bearing true allegiance to the Queen, her heirs and successors.  They asserted that the requirement to swear or affirm allegiance to the Queen in order to become a Canadian citizen violated their rights of freedom of conscience and religion, freedom of expression and equality under the Charter of Rights and Freedoms.  They argued that the government could not justify any such violation as being a reasonable limit in a free and democratic society and sought a declaration that the impugned section of the Citizenship oath was optional. 
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"When a Contractor Defaults, Who Has Priority? Surety or Bank?," by Manju Gupta for the Turnaround Times

The construction industry has recently boomed, with the industry adding 20,000 jobs nationally in August, and employing 6.1 million Americans, the highest number since May 2009.

Accordingly, with construction loans on the rise and performance and payment bonds securing most construction projects, it is important to understand the legal rights of all concerned.

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"FDA’s LDT proposal means ‘whole new ballgame’ for labs," Rick Cooper and Jane Pine Wood featured in CAP TODAY

October 2014—The Food and Drug Administration’s plan to subject many laboratory-developed tests to a new layer of regulatory requirements over the course of the next decade is drawing sharply contrasting reactions from stakeholders who view it as either an essential step to improve patient safety or a hindrance that will stifle diagnostic innovation and test improvement. 

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Role of the United States Securities and Exchange Commission in the EB-5 Program. Current Trends and Suggestions for Future Guidance

The EB-5 industry involves either (i) a direct investment in a project company or (ii) the formation of a new commercial enterprise entity (herein referred to as the “NCE”) in order to make (A) a direct investment in the job creation entity (“JCE”) or (B) a loan to the JCE.  In each case, the intent is to create jobs to comply with the requirements of United States Citizens and Immigration Services (“USCIS”).  In connection therewith, beginning in 2012, the Securities and Exchange Commission (“SEC”) has taken a far more active role in cooperating with USCIS to ensure compliance with the anti-fraud provisions of the various securities laws that regulate the sale of United States securities, even if the sale is conducted offshore pursuant to a Regulation S exemption under the Securities Act of 1933, as amended (the “Securities Act”).

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Parties Gearing Up For Chevron’s Ecuadorean Pollution Case at the Supreme Court

The Canadian Bar Association (“CBA”) announced last week that it was withdrawing its application to intervene before the Supreme Court of Canada in the pollution case of Chevron Corporation et al. v. Yaiguaje, et al.  The original US$19 billion judgment of a court in Ecuador was one of the largest judgments ever imposed by a court for environmental pollution.

The CBA said that its Intervention Policy required that its Legislation and Law Reform Committee sanction the factum before it could be filed with the court.  In this case, the Committee concluded that while the factum was well-drafted and of a high standard of quality, it did not meet the specific requirements of CBA’s Intervention Policy.  As a result, the CBA concluded that without certification of the factum, its intervention could not move forward and would be withdrawn.
The withdrawal was reported as an “eleventh-hour reversal” by the CBA.   It had planned to intervene at the Supreme Court on behalf of Chevron in its on-going battle involving enforcement of the judgment obtained by Ecuadorian indigenous plaintiffs for pollution of their lands in the Amazon basin rainforest.  After a lengthy legal battle that has lasted nearly 20 years, an Ecuadorian court found Chevron liable for oil pollution.  The nearly US$18 billion damages awarded in 2011 was reduced by appeal courts in Ecuador to US$9.5 billion.  
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