North America

EB-5 program status – observations on China’s project activity

Arnstein & Lehr Attorney Ronald Fieldstone

Ronald R. Fieldstone

Summary of Conference and Business to Beijing, China

As a follow-up to my recent March 2015 trip to China, I have several observations concerning the status of the EB-5 program and, in particular, the reaction in China with respect to same.

The good news is that the market in China still seems very robust, even with retrogression estimated to take place in May or June. There seems to be a tremendous demand for the EB-5 green card program, notwithstanding the fact that the Chinese nationals are also migrating to other countries around the world that have a much easier entry policy than the United States.

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How employers can avoid costly mistakes

With industry salaries in such a strong place, according to the 2015 PRWeek Salary Survey, it is important PR firms ensure their employment practices minimize potentially costly mistakes. To that end, there are two key areas of current concern: First, keeping the “independence” in the independent contractor relationship. Second, the federal law governing background checks.

How free are freelancers?

More than ever, firms face increased risks of misclassifying workers as independent contractors when the law regards them to be employees. A company’s misclassification of its contractors increases the likelihood of Department of Labor audits and individual or class action lawsuits by workers claiming they are entitled to overtime and other employee benefits, even though they were paid as an independent contractor. More…

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RSS welcomes a new lawyer

March 25, 2015 — The firm is pleased to welcome Jordi Montblanch, who will focus his practice mainly on transportation and administrative law. Jordi was very recently called to the Quebec Bar, a few weeks after becoming a member of the Ontario Bar.

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Telemedicine, State Boards and the Supreme Court

Supreme CourtI have examined on this blog the various legal and regulatory issues implicated by telemedicine.  Many of those issues involve the practice of medicine and how state medical boards interpret state laws and regulations impacting telemedicine, and how those boards enforce those laws.  Believe it or not, a recent Supreme Court case may have an impact on how state boards do their business.

On February 25, 2015, the Supreme Court of the United States held that the North Carolina Dental Board (“Board”) was not insulated from federal antitrust liability under the so-called “state action” doctrine when it engaged in anticompetitive conduct to restrain non-dentists from performing teeth whitening services.  While the North Carolina case involved a dental board’s attempt to restrict activities of non-dentists, the Court’s opinion has broader implications for how states regulate and supervise professional boards—such as state medical boards.  Ultimately, the Supreme Court decision illustrates how an individual or entity, subject to perceived over-regulation by a professional board, might mount a defense by scrutinizing whether the board meets the “state action” requirements to be insulated from liability for anticompetitive regulatory actions.  Please click here to read the full EBG Client Alert.

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Amendments to Prospectus Exemptions and Additional Obligations for Issuers and Brokers

By Bernard Pinsky and Nafeesa Valli-Hasham

On May 5, 2015, changes to National Instrument 45-106 Prospectus and Registration Exemptions (“NI 45-106”) will come into force which will put additional responsibility on issuers and brokers to take “reasonable steps” to ensure investors who participate in a private placement and who represent themselves as accredited investor or friends and family are in fact eligible for those prospectus exemptions. In addition, the amendments include new documentation requirements for the accredited investor exemption and restrictions on the availability of the minimum amount exemption.

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OSC Reviews Compliance with Related Party Transaction Disclosure Requirements

By Angela Blake

On January 29, 2015, the Ontario Securities Commission (the “OSC”) released OSC Staff Notice 51–723, which is a report on its review of related party transaction disclosure filed by 100 randomly selected, Ontario-based issuers. Nearly half of the issuers reviewed received comments from the OSC requesting changes to their management discussion and analysis (“MD&A”) filings. The OSC noted that, while many issuers rely extensively on related party transactions to advance their business on a cost-effective basis by leveraging existing relationships, such transactions have the potential to be unfair to shareholders due to inherent conflicts of interest. Accordingly, it is critical that issuers provide full and adequate disclosure about these transactions so that shareholders can better understand their business purpose and value.

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Clark Wilson paralegals become designated paralegals

Shannon Baker and Nancy Vianello have become the first designated paralegals at Clark Wilson. By obtaining this designation, which was created and is recognized by the Law Society of BC, Shannon and Nancy are able to provide an additional level of access, responsiveness and value to our clients in the areas of insurance and construction law for Shannon and in the area of strata property law for Nancy. Congratulations, Shannon and Nancy!

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Federal Court in California Sheds Light on Computer Fraud and Abuse Act: Allegations of Indirect Access Held Insufficient To State Claim

On March 20, 2015, a California federal court rejected an expansive reading of the Computer Fraud and Abuse Act (“CFAA”) urged by two plaintiff corporations that sought to hold a competitor and two of its directors liable under the CFAA, under an agency theory, for the actions of a former employee who allegedly downloaded and stole the corporations’ confidential trade secrets.

The plaintiffs, Koninklijke Philips N.V. and Philips Lumileds Lighting Company (“Lumileds”) are engaged in the business of Light Emitting Diode (“LED”) technology.  They alleged that Dr. Gangyi Chen, while employed, downloaded Lumileds’ trade secrets and confidential business information onto a portable storage device, then resigned and began working for a competitor in China, Elec-Tech International Co., Ltd. (“ETI”).  Six months after Dr. Chen began at ETI, in an amount of time that plaintiffs called unprecedented in the lighting industry, ETI announced two new high-energy LED lighting products.

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NLRB Weighs in on Employers’ Right to Monitor Workplace Communications

E. Jason TremblayE. Jason Tremblay

It has traditionally been understood and recognized that employees do not have an expectation of privacy when using their employer’s computer system and that employers can monitor and control their employees’ emails. However, in light of a recent decision by the National Labor Relations Board (“NLRB”) in Purple Communications, Inc., 361 NLRB 126 (2014), employers may need to rethink this commonly held belief.

In Purple Communications, the NLRB overruled long-established precedent that employees have no statutory right to use their employer’s email system for Section 7 purposes and held instead that employee use of email for statutorily protected communications on nonworking time must be presumptively permitted by employers that give employees access to their email systems.

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SABER & SONE GROUP V. MNR – ACCOUNTING FIRM LOSES EFILE PRIVILEGES*

by Peter H. Baek, CPA, CA, LLB, Partner, Fogler, Rubinoff LLP *

This article was originally published in the CCH Tax Topics Newsletter, Issue No. 2243.

Introduction

“What if you lose your EFILE privileges?” I asked this question to an accountant in public practice. I believe I heard the words “devastating” or “significantly detrimental”. In this day and age, electronic filing (“EFILE”) and other internet privileges have become a vital asset to many accounting firms. The loss of such privileges could be very disruptive and detrimental to an accounting practice. Accordingly, when a court decision about revoking EFILE privileges comes up, I imagine many accountants will be keenly interested in finding out how such privileges were lost, hoping that there was some compelling evidence of fraud or other sufficiently egregious conduct to allay any fear that they could end up in similar circumstances. More…

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