Legal Updates

Succession planning for EU residents

A mini revolution is about to take place in the world of Will drafting for EU residents, including British nationals owning assets on the Continent.  Not many lawyers seem to be talking to their clients about it yet so naturally I want you, dear blog reader, to be among the first to know.
It’s all because of the EU Succession Regulation (Brussels IV), due to come into force for the most part in August 2015.
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Multistate Tax Update — September 19, 2013

The Wisconsin Department of Revenue (the “Department”) recently issued guidance indicating that same-sex married couples may not file jointly and must file separate income tax returns. In addition, same-sex married couples will be required to file a new form, Schedule S. While many may view the Department’s guidance in a negative light, it is likely that the Department has its hands tied until either political, legislative or judicial action (or some combination thereof) unties them. Lawsuits are likely to ensue following the announcement of the Department’s guidance.

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Federal Courts Uniformly Embrace Climate Science

A visitor to Capitol Hill might come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is caused by human activity.  But one place where there are few such questions is the courts.

In a compelling analysis of federal court decisions addressing climate change issues,  Michael B. Gerrard, Professor of Professional Practice and director of the Center for Climate Change at Columbia Law School, argues persuasively that climate change science has been unanimously accepted by the courts (with one piddling exception) and  the basis for several significant decisions.  Anyone in the position of having to argue the acceptance of climate science in a court case should take note of Professor Gerrard’s article, “Court Rulings Accept Climate Science“, which appeared in the New York Law Journal on September 12, 2013, which contains lengthy citations to the relevant case law.   

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Administration Rejects Labor’s ObamaCare Demands

by: Adam C. Abrahms, Kara M. Maciel, Adam C. Solander, and Steven M. Swirsky

On September 13, 2013, the Obama Administration rejected the union movement’s intense lobbying efforts to seek a waiver, so that their members would be able to receive tax subsidies in the Affordable Care Act (“ACA”) Marketplaces for those of their members who will be offered “affordable coverage” from their employers.

Beginning January 1, 2015, the ACA requires that large employers offer affordable health coverage that provides minimum value to their “full-time employees” (those working 30 hours or more per week) or pay a penalty. If an employee is not offered health insurance, or if the coverage offered does not meet the definition of “affordable” or does not provide minimum value, the employee may go to the Marketplace (formerly known as the Exchanges) to purchase coverage. In such cases, certain employees may receive a tax credit or premium subsidy in the Marketplace to help defray the cost of obtaining health coverage.

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Second Chance for Lawyer Ordered to Pay Costs Personally?

Rule 57.07 of Ontario’s Rules of Civil Procedure gives the court (including a Master of the court) discretion to award costs of a proceeding against a lawyer and to require the lawyer to pay the costs personally. Specifically, the rule provides that where a lawyer for a party has caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default, the court may make an order, (a) disallowing costs between the lawyer and the client or directing the lawyer to repay the client money paid in respect of costs; (b) directing the lawyer to reimburse the client for any costs that the client has been ordered to pay to another party; and (c) requiring the lawyer personally to pay the costs of any party.   Such an order may be made by the court on its own initiative or on the motion of any party to the proceeding but the court has no discretion to make such an order unless the lawyer is given a reasonable opportunity to make representations to the court. 
In the case of Haider Humza Inc. v. Rafiq [2012] ONSC 6161, Master Dash of the Ontario Superior Court of Justice ordered the plaintiff’s lawyer, Murray Teitel, to personally pay the defendant’s lawyer costs in the sum of $3,000 for conduct which Master Dash defined as “sharp practice”.  Master Dash held, among other findings, as follows: 
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Oct. 2: Webinar on Workplace Violence and Active Shooter Scenarios – Protecting Your Employees

We’d like to recommend an upcoming complimentary webinar, “Addressing and Responding to Workplace Violence and Active Shooter Scenarios to Protect Your Employees” (Oct. 2, 2:00 p.m. EDT), by our Epstein Becker Green colleagues Kara M. Maciel, Susan Gross Sholinsky, and Christopher M. Locke, with Daniel Hess and Lynne Cripe of The KonTerra Group, an employee assistance program provider that regularly counsels employees undergoing stressful life events that can lead to violence. 

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Support for idea of specialist personal injury court

The Scottish Government has published details on the responses received to its consultation on proposals to restructure the way civil cases and summary criminal cases are dealt with by the courts in Scotland.

The Government apparently received 115 responses, and said that there was a very clear majority support for almost all proposals and concepts detailed in the consultation.

One of the proposals included in the consultation exercise was the creation of a specialist personal injury court with an all-Scotland jurisdiction.

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When It Comes To Defence Costs, First Layer Is Usually The Payer

In a world of increasing business risks, insureds often purchase one or more layers of excess coverage to secure additional protection from the unknown. Such layering of coverage, however, can trigger disputes between primary insurers and excess insurers.

In the recent decision of ACE INA Insurance v. Associated Electric & Gas Insurance Services Ltd., 2012 ONSC 6248, the Ontario Superior Court of Justice considered the issue of when an excess liability insurer would have an obligation to contribute to defence costs which are often borne by the insurer at the primary layer.

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What is a streaming agreement?
A streaming agreement is a specialized agreement of purchase and sale for gold, silver or other precious metals pioneered by Franco- Nevada Mining Corporation in the early 1980′s. In general terms, a purchaser financing company will agree to purchase a specific percentage interest in the precious metal production (typically gold or silver) from a mine at a discounted price and for a specific time period (often the life of the mine). The financing company will make an upfront cash payment and then will purchase the commodity on an on-going basis at a price equal to the lower of a fixed price and the prevailing market price of the commodity. More…

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A recent High Court decision in the United Kingdom offers a cautionary tale to those producing waste and relying on outside contractors to dispose of that waste without internal systems for verifying that the waste is being disposed of lawfully. In Mountpace Ltd. v. The London Borough of Haringey [2012] EWHC 698, Mountpace contracted for a renovation of a London property. Part of the work included the removal and disposal of waste created in the course of renovation. Mountpace’s contractor transferred the waste to an independent waste contractor which dealt with its disposal. The
independent waste contractor illegally dumped the waste in contravention of the 1990 Environmental Protection Act. The contractor was convicted of knowingly causing controlled waste to be deposited on land without an environmental permit . Mountpace was subsequently charged with reaches of the duty of care relating to transferring waste only to an authorized person or to a person for authorized transport purposes. Mountpace argued at trial that it had reasonably relied upon the same contractor with whom it had successfully dealt previously without problem. Mountpace submitted that there was no need in the circumstances to spell anything out and that it had no reason to foresee that the contractor would use an unauthorized dumper, or “fly tipper”, as they are known in the U.K. The company defendant suggested further that it was an implied term of the contract that the contractor would dispose of the waste lawfully and that nothing which Mountpace would have done by way of spelling out in the contract or some other document more precisely by way of instruction could have, or would have, prevented this particular unauthorized dumping. The evidence disclosed that there was no clear audit trail or internal procedures to deal with contractors which took lawful waste management into account . There were no checks and balances operated by Mountpace to ensure that its contractors complied with their statutory obligations. More…

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