Legal Updates

Alberta Court of Appeal Explores Boundary Between Faulty Workmanship and Resulting Damage

By Carmen Tham and R. Glen Boswall

In the recent case of Ledcor Construction Limited v. Northbridge Indemnity Insurance Company, the Alberta Court of Appeal was asked to decide whether an “All Risks” property insurance policy covered damage caused by one trade contractor improperly cleaning windows provided by another trade.  In particular, the issue was whether the window damage was excluded as “poor workmanship” or covered as “resulting damage.”

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Many Leave Families with No Inheritance Due to Wills

Millions of Britons could face a legal dilemma due to their loved ones not leaving a will according to research carried out by Macmillan Cancer Support.

According to their report, six out of ten stated that they had lost a loved one to find that they had not written a will with no clear indication of how the estate should be divided. A fifth of all respondents to the survey found that such issues led to a family dispute.

The most common reason for those not leaving a will was due to never getting around to do so, with one in three admitting that they promised something in their will but never granted it. Such actions, along with never having a will in place is one of the most common reasons for family disputes.

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A “Mixed Bag” from SCOTUS – Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter

In a unanimous decision announced this morning, the U.S. Supreme Court, in Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, 2015 BL 163948, U.S., No. 12-1497, 5/26/15, ruled that the Wartime Suspension of Limitations Act (“WSLA”) applied only to criminal charges and not underlying civil claims in times of war. Thus, the WSLA – which suspends the statute of limitations when the offense is committed against the Government – cannot be used to extend the statute of limitations in cases such as those brought under the False Claims Act (“FCA”). This ruling reversed a decision of the Fourth Circuit which had previously held that WSLA applied to both criminal and civil claims.

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The Real Impact of Counterfeiting

Counterfeit StampA group of luxury brand makers including Gucci, Balenciaga, Yves St. Laurent, and other brands owned by Paris-based Kering SA, recently sued on-line retail giant Alibaba, claiming that the company had knowingly made it possible for counterfeiters to sell their wares throughout the world.  Why should we care about counterfeit goods?  Those luxury brand companies have so much money, they’re not really hurting.  If you can score genuine looking merchandise for a cheaper price, you’re just a savvy shopper, you’re not really hurting anyone, right?  WRONG.

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Health Care Industry: OSHA Is Quietly Gunning for You – Is Your Workplace Ready?

On April 2, 2015, Thomas Galassi, Director of the Directorate of Enforcement for OSHA, sent a memorandum to all Regional Directors announcing that the agency’s National Emphasis Program on Nursing and Residential Care Facilities would be extended until replaced by updated guidance or removed by the agency.  Mr. Galassi went on to state that, because the health care industry reports more work-related injuries and illnesses than any other general industry,

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India: Regulatory Alerts

Foreign Exchange Management Act:

Card Payments – Relaxation: The Reserve Bank of India has, in terms of its notification no. DPSS.CO.PD.No.2163/02.14.003/2014-2015 of May 14, 2015, relaxed the requirement of additional factor of authentication (AFA) for contactless card (card present) transactions only for a maximum value of Rs. 2,000 per transaction. Beyond this transaction limit, the card has to be processed as a contact payment and authentication with PIN (AFA) will be mandatory. This relaxation does not apply to ATM transactions irrespective of the transaction value, and card not present transactions (CNP). Full text of the notification can be found here.

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EARTH WIND & FIRE vs. THE EARTH WIND & FIRE EXPERIENCE featuring the Al McKay All Stars

Music industryDo you remember the song “September” ? Do you also remember the band behind the song? Yes… it is the famous US band EARTH WIND & FIRE. Why I am asking this? Thanks to the IP team of the Austrian law firm Brauneis Klauser Prändl (bkp) led by Martin Reinisch, this band just achieved a retroactive cancellation of the Austrian trademark “THE EARTH WIND & FIRE EXPERIENCE featuring the Al McKay All Stars”. Why is this so significant? The effect of the successful trademark cancellation goes well beyond Austria, as the deleted Austrian trademark served as basis trademark for an identical international mark with protection in more than 10 countries. Are you interested? Let’s start at the beginning…

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More Company Handbook Provisions Are Held Invalid According to the NLRB

E. Jason TremblayE. Jason Tremblay

As previously reported, the National Labor Relations Board (NLRB) has taken a very aggressive approach against employers by requiring them to rescind employee handbook provisions that it deems to be unlawful pursuant to the National Labor Relations Act (NLRA). In the most recent example of such an approach, an NLRB Administrative Law Judge (ALJ) found in favor of the United Food and Commercial Workers Union against Macy’s Inc. and held that several Macy’s employee handbook provisions unlawfully restricted its employees’ right to communicate and complain about workplace conditions. A copy of the Macy’s Inc. decision is here.

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House Energy and Commerce Committee Proposes, then Drops, 340B Reform Language to 21st Century Cures Legislation

By Alan J. Arville, Constance A. Wilkinson and Selena M. Brady

The House of Representatives Energy and Commerce Committee (“the Committee”) circulated draft language to include in its 21st Century Cures legislation earlier this week to reform the 340B drug discount program (the “340B Program”). Although the draft 340B language was pulled from the legislation yesterday, the language proposed provides insight into what future legislative reform may include. The draft language, if adopted, would have a substantial impact on all 340B Program stakeholders, including, covered entities, contract pharmacies, 340B technology vendors, and drug manufacturers.

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Supreme Court Confirms Test For Judicial Bias

The Supreme Court of Canada recently released a decision which established the test for determining bias in a trial judge.  In the case of Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, the Supreme Court partially allowed an appeal from the Court of Appeal for the Yukon. 
 
In this case, the Yukon Francophone School Board (“School Board”) which had responsibility for one school, a French-language school founded in 1984, sued the Yukon government for what it claimed were deficiencies in the provision of minority language education.  The trial judge ruled in the School Board’s favour on most issues.
 
The Yukon government appealed to the Court of Appeal which concluded that there was a reasonable apprehension that the trial judge was biased based on a number of incidents during the trial as well as the trial judge’s involvement as a governor of a philanthropic francophone community organization in Alberta.  The Court of Appeal ordered a new trial. 
 
The School Board appealed the matter to the Supreme Court of Canada.  The Supreme Court partially allowed the appeal and agreed with the Court of Appeal’s conclusion that there was a reasonable apprehension of bias requiring a new trial.
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