Legal Updates

New York Federal District Court Awards Undocumented Immigrants FLSA Damages

by Robert S. Groban, Jr.

On December 19, 2013, the U.S. District Court for the Southern District of New York denied the defendant’s motion for discovery regarding the plaintiffs’ immigration status in Colon v. Major Perry St., Inc., No. 1:12-cv 03788 (S.D.N.Y. 2013). In Colon, several workers, some of whom are undocumented aliens, sued under the Fair Labor Standards Act (“FLSA”) to recover minimum and overtime wages that the employer refused to pay. The defendant argued that under the Second Circuit’s decision in Palma v. NLRB, 723 F.3d 176 (2nd Cir. 2013), the plaintiffs were barred from collecting back pay under the FLSA if they were here illegally. In Palma, the Second Circuit held that the workers, who were undocumented aliens at the time they were fired, were precluded from collecting back pay under the National Labor Relations Act.

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ARBITRATION CONFIDENTIALITY – WHAT YOU THOUGHT YOU KNEW COULD HURT YOU

Confidentiality applies to all arbitrations—right? Wrong. Most attorneys and clients assume that arbitration, by its very nature, is confidential. However, although arbitration provides greater privacy and confidentiality than litigation, not all arbitration rules require confidentiality. Therefore, it is important to understand the distinctions made in the rules of the applicable arbitration forum, as well as how to obtain confidentiality when those rules don’t provide for it. More…

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CALIFORNIA COURT RULING REJECTING OVERSTOCK.COM’S ARP PROGRAM PRESENTS CHALLENGES FOR ONLINE RETAILERS

A California state court has ruled that Overstock.com’s comparative advertising method is misleading and must be changed. In addition, the court ordered the online retailer to pay $6,819,000 in penalties.

THE BOTTOM LINE
While there aren’t many regulatory or other legal challenges involving deceptive pricing, and competitive pressures sometimes force retailers to take actions they may not take otherwise, the court’s Overstock.com decision illustrates that failing to pay attention to the laws regarding pricing can be dangerous. Retailers should take a look at their policies and practices regarding comparative pricing and ensure they are compliant with the law. More…

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Immigration Update

Robert Groban and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to employers. Following are the main topic headings:

Read the full alert here.

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Immigration Update

By: Michelle Capezza

Robert Groban and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to employers. Following are the main topic headings:

Read the full alert here.

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RBI’s clarifications on transactions covered under section 6(4) of Foreign Exchange Management Act, 1999

In terms of Section 6(4) of the Foreign Exchange Management Act, 1999 (“FEMA”) a person resident in India may hold, own, transfer or invest in foreign currency, foreign security or any immovable property situated outside India if such currency, security or property was (a) acquired, held or owned by such person when he was resident outside India, or (b) inherited from a person who was resident outside India.

However, the RBI has vide A.P. (DIR Series) Circular No. 90 dated January 09, 2014, clarified that the following transactions will be permitted for purposes of Section 6(4) of the FEMA:

(a)   Foreign currency accounts opened and maintained by a person when he was resident outside India;

(b)   Income earned through employment or business or vocation outside India taken up or commenced while a person was resident outside India, or from investments made while such person was resident outside India, or from gift or inheritance received while such a person was resident outside India;

(c)   Foreign exchange including any income arising there from, and conversion or replacement or accrual to the same, held outside India by a person resident in India acquired by way of inheritance from a person resident outside India;

(d)   A person resident in India may freely utilize all of his eligible assets abroad as well as income on such assets or sale proceeds thereof received after his return to India for making any payments or to make any fresh investments abroad without approval of Reserve Bank, provided the cost of such investments and/ or any subsequent payments received therefor are met exclusively out of funds forming part of eligible assets held by them and the transaction is not in contravention to extant FEMA provisions 

By: Ms. Seema Jhingan, Partner (sjhingan@lexcounsel.in) and Mr. Himanshu Chahar,  Senior Associate (hchahar@lexcounsel.in).

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RBI’s clarifications on issuance of non-convertible/redeemable bonus preference shares or debentures

Until recently, the RBI has been granting permission to Indian companies for issuing non-convertible/redeemable bonus preference shares or debentures to non-resident shareholders from their general reserves pursuant to a Scheme of Arrangement approved by a Court in India, on a case to case basis.

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Liberalization of definition of Infrastructure Sector under ECB Policy

The Reserve Bank of India (“RBI”) has, vide its A.P. (DIR Series) Circular No. 85 dated January 06, 2014, further liberalized the existing definition of ‘Infrastructure Sector’ under the extant external commercial borrowings policy (“ECB Policy”), to additionally include ‘Maintenance, Repairs and Overhaul’, which will be treated as part of sub-sector of Airport in the Transport sector of infrastructure.

Further to the liberalization as aforesaid, the ‘Infrastructure sector’ and its sub-sectors that can avail external commercial borrowings under the automatic route of the ECB Policy (subject to certain compliances) will be deemed to include:

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Rock, paper, scissors

In the playground, disputes over priority and precedence were often settled by a game of rock, paper, scissors. The rules of the game and identification of a winner were either known or readily understood: paper wraps rock, rock blunts scissors, scissors cut paper. If only the game of contractual interpretation was so simple.

Construction contracts are often made up of several documents, usually from a number of different sources. Inconsistencies and contradictions may occur between the separate documents. If the parties have included a clause establishing which documents will take precedence in the contract where any ambiguities arise, surely that would settle any questions? More…

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Beneficial ownership of UK companies

In early 2014 we are expecting the government to publish its formal response to the Department for Business Innovation & Skills’ “Transparency & Trust” discussion paper published in July 2013.

One of the proposals in the discussion paper is to create a central registry of beneficial company owners. The paper followed the UK-chaired G8 summit in June 2013, where the government committed to increased transparency by requiring that beneficial company ownership be disclosed. More…

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