North America

Special Issues Related to Operating Expense Provisions in Leases (G. Andrew Gardner)

Andy Gardner from McDonald Hopkins LLC, Cleveland, Ohio, will discuss special issues in Common Area Maintenance Clauses including, Audit Provisions, Gross-Up Clauses, lesser known Exclusions from Common Area Maintenance Charges, “CAM Caps” and Exclusions from Caps at the ABA Leasing Group’s next call in the series, “The Nuts and Bolts of Leases,” on October 30, 2013.

Materials for the call are posted here: click to download.

http://apps.americanbar.org/dch/committee.cfm?com=RP259000

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Jeffrey Vicq quoted in Postmedia article

Clark Wilson partner Jeffrey Vicq was recently quoted in a Postmedia News piece, “Royal Canadian Legion tells Reddit to remove poppy symbol over trademark concerns.” The article examines the Royal Canadian Legion’s allegation that online forum Reddit violated the Legion’s legal rights by including the symbol as part of a webpage dedicated to discussions about Canada, and references the Legion’s other attempts to stop a variety of other organizations from making any use of the poppy. Jeffrey provided clarification about the legal basis for the Legion’s claims, observing that though the Legion’s efforts may be ruffling feathers, they also serve to highlight the importance of maintaining the poppy as a symbol of Remembrance Day.

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Amendments to Trade-marks Act Re-introduced in Parliament

On October 28, 2013, the government introduced Bill C-8, An Act to Amend the Copyright Act and the Trade-marks Act and to make consequential amendments to other Acts.  The short title of Bill C-8 is the Combating Counterfeit Products Act.

Bill C-8 is the same as Bill C-56 which was introduced in the previous session of Parliament but did not proceed when Parliament was prorogued.  We previously commented on Bill C-56.

Bill C-8 will likely move quite quickly through the House of Commons.  It has already passed second reading and will now go to the Standing Committee on Industry, Science and Technology.

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Does Preemption Prevent Redress For Homeowners Impacted By Polluters’ Air Emissions?

On April 23, 2012, residents of rural Muscatine, Iowa filed a class action lawsuit titled, Laurie Freeman et al. v. Grain Processing Corporation (case no. LACV 021232), in the Iowa District Court for Muscatine County. The defendant, Grain Processing Corporation, is an Iowa manufacturer of corn syrup, starches and alcohols. Plaintiffs sought compensation for property damage and adverse health effects on behalf of all putative class members (some 17,000 people) residing within three miles of the facility.

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California Court of Appeal Revisits CUTSA "Preemption" of Other Tort Claims

California is one of the 47 states to have adopted the Uniform Trade Secrets Act. Among other things, “CUTSA,” as it is sometimes referred to in the Golden State, brought greater clarity to what qualifies as a “trade secret” and “misappropriation” of a trade secret, and it established an enforcement scheme that provides for an award of attorneys’ fees to a prevailing party and for potential award of a “royalty” in cases where the aggrieved party cannot prove actual damages.

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EU Looks to Tighten Privacy Rules

One of the European Parliament’s 20 committees, the Civil Liberties Committee (“LIBE”), voted on October, 21, 2013 on a proposed EU General Data Protection Regulation. The regulation includes an increased level of fines and new regulatory requirements (in case of certain international data transfers and disclosure requests for personal data by foreign courts or authorities). Companies should monitor these issues closely in the next couple of months. Most likely, after the plenary vote on November 18-21, the Parliament will push for rapid negotiations with the Council (which represents the governments of the individual member countries) and the Commission  to obtain a decision on the final text of the proposed regulation before the Parliamentary elections and end of the current Commission mandate in May 2014. In Europe, the three institutions are involved in the law-making process. In principle, the Commission proposes new laws, and the Parliament and Council adopt them. The Commission and the member countries then implement them, and the Commission also ensures that the laws are properly applied and implemented.

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Effective Risk Management in of Growing Cyber Security Risk in the Hospitality Industry

By: Alaap Shah and Marshall Jackson

Data is going digital, devices are going mobile, and technology is revolutionizing how companies operate. It seems to be business as usual, as your hospitality company continues to collect, use and transmit large amounts of sensitive data to operate the business. You have even taken measures to help guard against the “typical” risks such as lost laptops, thumb drives and other electronic devices. However, unbeknownst to you, hackers sit in front of their computers looking for ways into your network so that they may surreptitiously peruse through confidential financial records and sensitive consumer and employee information.

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Effective Risk Management of Growing Cyber Security Risk in the Hospitality Industry

By: Alaap Shah and Marshall Jackson

Data is going digital, devices are going mobile, and technology is revolutionizing how companies operate. It seems to be business as usual, as your hospitality company continues to collect, use and transmit large amounts of sensitive data to operate the business. You have even taken measures to help guard against the “typical” risks such as lost laptops, thumb drives and other electronic devices. However, unbeknownst to you, hackers sit in front of their computers looking for ways into your network so that they may surreptitiously peruse through confidential financial records and sensitive consumer and employee information.

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Immigration Alert: October 2013

  1. USCIS Instructs on Immigration Benefits for Same-Sex Spouses
  2. U.S. Consulates Deny H-1B Visa Applications Due to Improper LCAs
  3. Eighth Circuit Awards Undocumented Immigrants FLSA Damages
  4. District Court Grants EEOC’s Motion to Protect Plaintiffs’ Immigration Status
  5. Ninth Circuit Upholds Civil Penalties for Form I-9 Violations
  6. U.S. Government Issues New Pronouncements on Pre-Populating Forms I-9
  7. OSC Cautions Employers on Re-Verifying Conditional Green Cards
  8. OSC Warns Employers to Stop Asking Job Applicants About Citizenship Status
  9. OSC Cautions General Contractors Against Re-Verifying Forms I-9 Previously Completed by Subcontractors
  10. DOJ Settles Employment Discrimination Allegations Under IRCA
  11. State Immigration Legislation Is Up in the First Half of 2013
  12. DOS Issues November 2013 Visa Bulletin

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Fungal Meningitis Outbreak Spurs FDA Oversight Of Drug Compounders

In 2012, a major outbreak of fungal meningitis was traced to drugs compounded by New England Compounding Centers. The outbreak included approximately 750 confirmed cases and has resulted in 64 deaths to date. Tragedies of this scale have often been the impetus for major changes to federal food and drug laws in the past; the FDCA itself was enacted in 1938 in response to a tragedy in which the use of an improperly manufactured drug (elixir sulfanilamide) led to over 100 patient deaths.

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