Legal Updates

Employee Benefits Alert: Does Your Retirement Plan Fiduciary Monitor Your Plan Investments?

U.S. Supreme Court confirms that fiduciaries have an ongoing duty to review and monitor plan investments
In its May 18, 2015, decision in Tibble v. Edison International (Tibble), the U.S. Supreme Court confirmed that the fiduciaries of a retirement plan have an ongoing duty to review the appropriateness of investment options offered to plan participants.

The Legal Question

The legal issue in question was whether plan fiduciaries could be sued for breach of fiduciary duty for retaining investment options that were initially selected by the fiduciaries more than six years before the Tibble participants began their legal action. This narrow procedural question addressed the statute of limitations applicable to the breach of a fiduciary’s duty under the Employee Retirement Income Security Act of 1974 (ERISA).

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“The Art of (Cyber) War: Cybersecurity Tactics for All Financial Institutions” Richik Sarkar and James Giszczak for Bloomberg BNA

As financial institutions of every type and size — national, regional and community banks, thrifts, mutuaIs, credit unions, and non-bank lenders — increase their collection of personal information about their customers and employees, they become larger targets for a data privacy incident. Financial institutions are truly in a cyber war and must fight this battle on four fronts: external threats, intentional misappropriation by rogue employees, data accidentally lost or misplaced, and vendor negligence; accordingly, proper tactics and strategy are essential for survival. 

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Opsigelse af lejer ikke rimelig ud fra vurdering af parternes forhold

En udlejer kan opsige en lejer efter lejelovens § 83, stk. 1, litra a, hvis udlejer selv ønsker at benytte det lejede. Ved opsigelse efter denne bestemmelse er det et krav, at opsigelsen er rimelig henset til begge parters forhold.

I forhold til opsigelsens rimelighed skal der således både tages hensyn til, hvor længe udlejer har ejet ejendommen og lejers muligheder for at skaffe sig anden passende bolig, jf. lejelovens § 84, litra b. Ydermere indgår kriterier som alder, helbredstilstand, ændring i udlejers økonomiske forhold, udlejers boligforhold på opsigelsestidspunktet og hustandenes størrelse i vurderingen af rimeligheden.

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Is franchising becoming tougher in Quebec?

May 19, 2015 — Franchising, just like any other contract, consists of a blend of rights and obligations between the parties. A recent decision of the Quebec Court of Appeal provides an extensive analysis of the franchisor’s obligations.

In this document, Herbert Z. Pinchuk, Rhona Luger and Sharon G. Druker highlight the impact this decision may have on the relations between franchisors and franchisees.

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Form BE-10, 2014 Benchmark Survey of U.S. Direct Investment Abroad

The U.S. Bureau of Economic Analysis (“BEA”) is conducting the 2014 Benchmark Survey of U.S. Direct Investment Abroad. This survey requires certain U.S. persons to file a Form BE-10. Who Must Report. A BE-10 report is required of any U.S. person that had direct or indirect ownership or control of at least 10% of the voting stock of an incorporated foreign business enterprise (or an equivalent interest in an unincorporated foreign business enterprise) at any time during the U.S. person’s 2014 fiscal year. For example, a U.S. investment advisory firm that is the general partner of a non-U.S. partnership (for example, a Cayman master fund) or the general partner of a U.S. partnership that invests through a non-U.S. entity (for example, a Cayman master fund or special purpose vehicle) typically will be required to file a BE-10 report. More…

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THE DECISION On May 6, 2015, after over three months of public hearings and technical meetings over the past two and a half years, the Joint Review Panel established under the Canadian Environmental Assessment Act (CEAA) and the Nuclear Safety and Control Act, presented its report to the Federal Minister of the Environment. The Panel consisted of the Chair, Dr. Stella Swanson, who previously advised the federal review panel on High Level Nuclear Waste Disposal in Canada (the Seaborn Panel), Dr. James Archibald, a Queen’s University professor who served on the review panel on uranium mining in Saskatchewan and Dr. Gunther Muecke , a geologist who has previously served on federal– provincial review panels in complex quarry projects. The Report concludes that the deep geologic repository (DGR), to be built 680 metres below ground surface to permanently house 200,000 cubic metres of low and intermediate level radioactive waste (LILW), is not likely to cause significant adverse environmental effects, taking into account the implementation of the mitigation measures committed to by the proponent Ontario Power Generation Inc. (OPG), as well as the additional mitigation measures recommended by the Panel. The radioactive waste facility is to be built on the Bruce nuclear site in the Municipality of Kincardine ,Ontario. The low level waste consists of materials such as protective clothing, floor sweepings, mops and rags, while the intermediate level waste consists of nonfuel waste that cannot be handled without radiation measures such as used reactor core components, refurbishment waste and resins and filters from nuclear reactor operations. More…

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Motor Carrier Exemption Applies to Drivers Who can be Expected to Drive Interstate

In Resch v. Krapf’s Coaches, Inc., the Third Circuit Court of Appeals ruled that drivers who “rarely or never crossed state lines” were nevertheless covered by the motor carrier exemption to the FLSA because they worked in safety-affecting jobs and reasonably could have been expected to drive interstate routes.

The FLSA’s motor carrier exemption creates an overtime exemption for employees who are covered by the Secretary of Transportation’s authority to regulate the safe operation of motor vehicles in interstate or foreign commerce.  To fall under the Secretary of Transportation’s authority, the transportation involved in the employee’s duties must cross state lines or, within a single state, be a continuation of the interstate “journey of goods.”

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Interpretation of New Anti-monopoly Provisions in the Field of Intellectual Property Rights: a Corporate Compliance Perspective 2015/5/19 16:30:08

[Abstract] As the first legal document specially making provisions on anti-monopoly issues in the field of intellectual property rights, the Provisions of the SAIC are of great significance. For various reasons, the Provisions have a narrow scope of application and are yet to be improved in respect of operability and predictability. Enterprises shall not understand and apply the Provisions in an isolated manner, but grasp provisions of relevant laws comprehensively and accurately with systematic thinking mode to ensure compliance in respect of anti-monopoly in the field of intellectual property rights. More…

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Private Employers Likely to Face Gender Identity Discrimination Claims as Federal Government Continues to Expand Title VII Protections to Transgender Employees

Since we last reported on the 2012 Equal Employment Opportunity Commission (“EEOC”) decision in Macy v. Holder,[1] the federal government has continued to extend protection under Title VII of the Civil Rights Act of 1964 (“Title VII”) to transgender employees.  In July 2014, President Obama issued Executive Order 13672, prohibiting federal contractors from discriminating against workers based on their sexual orientation or gender identity.  Two months later, in September 2014, the EEOC filed its first-ever lawsuits alleging sex discrimination against transgender employees under Title VII.  Shortly thereafter, in December 2014, outgoing U.S. Attorney General Eric Holder released a memo announcing that the Department of Justice considers Title VII’s prohibition against sex discrimination to include discrimination based on gender identity, including transgender status.  Finally, earlier this year, on March 30, 2015, the Department of Justice filed its first lawsuit alleging an employer engaged in discrimination and retaliation against a transgender employee in violation of Title VII.

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Government to Act on “Back Door” Strike Action

The Government are set to deliver a manifesto promise of making significant changes to the strike laws that are in place in the UK.

In a move that has been welcomed by many businesses, the government are set to place a turnout quota on any ballot action in order to prevent unpopular, and in the eyes of many, unlawful strikes. It is proposed that under government plans, a strike affecting essential public services will need the backing of 40% of eligible union members, with a turnout of at least 50%.

Major sectors such as health, education and transport will need an even higher turnout in order to take legal industrial action.

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