North America

McDonald Hopkins Government Strategies Advisory: Breaking News on Highway Trust Fund

This week, the Senate easily passed a patch to the soon to be broke Highway Trust Fund. The Senate’s actions, however, don’t end the Highway Drama because the chamber made two critical changes to the legislation passed by the House.

First, by a vote of 71 to 26, the Senate voted for the Wyden-Hatch amendment that substitutes the pay-fors, swapping some of the money raised through pension smoothing for tax compliance instead. Second, and probably most problematic, the Senate voted 66 to 31 to adopt the Carper-Corker-Boxer amendment to only patch the Trust Fund up until December. This would set up another bite at the apple for proponents of a long-term fix in a potential lame duck session after the mid-term elections.

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Court Upholds Effective Disinheritence

The British Columbia Supreme Court recently refused to vary a mother’s Will that left only a token $10,000 to an estranged son.  In Brown v. Pearce Estate, the challenged Will read in part:

“I wish to leave no more than the $10,000 referred to above to my estranged son…Although I have sacrificed for him and I have supported him over the years, he has refused any contact with me, and…he has made it clear that he wants no further relationship with me.”

The son asked the Court to vary the Will, claiming that the mother owed him a moral duty to provide more than the $10,000 gift.  The Court considered the facts carefully, and declined to order a variation. 

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NLRB Drops Next Shoe On Micro-Units In Retail: Finds Bergdorf Goodman Women’s Shoe Sales Employees Not An Appropriate Unit

The NLRB finds that the women’s shoe sales employees at Bergdorf Goodman’s New York Store are not an appropriate unit for bargaining. The Board’s unanimous decision to reverse the Regional Director’s finding that the shoe sales team did constitute an appropriate unit and could have their own vote on union representation comes one week after its decision finding that a unit limited to the cosmetics and fragrance sales employees at a Macy’s in Saugus were an appropriate unit for bargaining. The Regional Directors who issued the Decisions and Directions of Election in Macy’s and Bergdorf Goodman each had relied on the Board’s Specialty Health Care decision, which is now often referred to as the “Micro Unit” decision.

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The New Jersey Technology Council: Informative Discussions at the 2014 Annual Meeting

By Michelle Capezza, Ian Carleton Schaefer, and Arthur O’Brien (upSKILL Project Manager, NJIT)

The New Jersey Technology Council (NJTC) is a not-for-profit, trade association which focuses on connecting decision-makers and thought-leaders from technology and technology support companies through access to financing opportunities, networking, and business support. Through its programs, the NJTC provides timely business information to help its members grow and succeed and provides forums for member companies to work together to advance New Jersey’s, and the region’s, status as a leading technology center. At NJTC’s Annual Meeting held in July at The Forsgate Country Club in Monroe, NJ, the NJTC furthered its mission by hosting a series of discussions on topics of import to today’s technology companies. The meeting was abuzz with various conversations and idea exchanges on various topics including the current U.S. patent system, forging partnerships between academic institutions and industry to meet workforce needs, early stage funding, and cloud management/hosting colocation as well as presentations from corporate CEOs regarding the challenges facing their companies.

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An Unconventional Convention: Fast Food Workers Of The World Unite With SEIU Support

The New York Times reported today in its business section in article by Steven Greenhouse, who covers labor matters for the paper, about a convention taking place in Addison. The convention, underwritten by the Service Employees International Union or SEIU, which has been not very quietly backing the “Stand for Fifteen,” movement in its quest for wages of $15 per hour in the fast food field.  It is probably not a coincidence that Addison is just four miles from McDonald’s headquarters in Oak Brook, Il.

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Construction Law and Litigation: Ohio Supreme Court Ruling simplifies contract drafting, negotiation, and enforcement

The Ohio Supreme Court issued its decision in Transtar Electric, Inc. v. A.E.M. Electric Servs. Corp., Slip Opinion 2014-Ohio-3095 on July 17, 2014. Although it does not change the underlying principles with respect to pay-when-paid vs. pay-if-paid provisions, the Court’s decision announces a bright-line rule that should simplify the issue.

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HRSA Issues Interpretive Rule on 340b Orphan Drug in Response to Court Vacating Final Rule

By Constance Wilkinson, Alan Arville, and Jonathan Hoerner

On July 23, 2014, the Health Resources and Services Administration (“HRSA”) issued an “interpretive rule” entitled “Implementation of the Exclusion of Orphan Drugs for Certain Covered Entities under the 340B Program” (the “Interpretive Rule”).[1] The Interpretive Rule follows the ruling by the U.S. District Court for the District of Columbia on May 23, 2014, that vacated the final rule previously released by HRSA on the treatment of orphan drugs under the 340B program (the “Final Rule”).[2]

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Supreme Court Rules Early Dismissal of Cases Beneficial

In Quebec, Article 165 of the Code of Civil Procedure(“Code”) provides the courts of that province with a mechanism, at a preliminary stage, to put an end to actions that are bound to fail.  In a recent Supreme Court of Canada decision (Canada (Attorney General) v. Confederation des syndicats nationaux, 2014 SCC 49), the court ruled that judges must be cautious in exercising this power:  although the proper of administration of justice requires that the court’s resources not be expended on actions that are bound to fail, the cardinal principle of access to justice requires that the power be used sparingly, where it is clear that an action has no reasonable chance of success. 

 In this case, the court agreed that an action brought by the Confederation des syndicats nationaux and the Federation des travailleurs et travailleuses du Quebec (referred to collectively as the “Unions”) was bound to fail, finding that the application of the doctrine of stare decisis was fatal to it.  A previous decision of the Supreme Court of Canada had settled the law on the legal issues that the action raised.  That previous decision deprived the Unions’ motion to institute proceedings of any legal basis. 
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McDonald Hopkins Government Strategies Advisory: This Week in Washington — July 25, 2014

A House Republican working group, headed by Rep. Kay Granger (R-TX), laid out a series of recommendations for legislation to deal with the current crisis on our southern border. These recommendations include:

  • Deploy the National Guard to the border to assist Border Patrol agents. Granger did not say exactly what the number of troops might be.
  • Require the Homeland Security Department to craft and implement a plan to “gain operational control” of the southwest border.
  • Address border-security issues in Central America and Mexico.
  • Create repatriation centers to help families and unaccompanied minors once they return to their home country.
  • Implement aggressive messaging campaigns—which are already underway in Honduras, Guatemala, and El Salvador. These are aimed at exposing the dangers of the journey to the U.S. and dispelling the myth that children will be permitted to enter the country.
  • Process family units within five to seven days. Children should have a fast-tracked immigration-court hearing within seven days after a child welfare official’s screening. More judge teams and temporary judges would be added.
  • Establish an independent commission to craft metrics to show if initiatives to secure the border are working.
  • Create tough penalties for smugglers and disassemble transnational criminal organizations.
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State of the Creative Series: Interview with Chief Creative Officer at Ogilvy & Mather North America

In case you haven’t noticed, things have changed a lot in the advertising and marketing industry. With bigger bandwidth and faster, smaller, cheaper digital devices, the world is staggeringly more connected. With home-grown, artisanal wine, cheese, whiskey . . . pants . . . the world is a lot more “local” as well.  And, of course, all of the choices you make – whether it’s the restaurant where you just ate, the starlet you just Googled or the selfie you just posted to Instagram – are obsessively observed, analyzed, and sold to by advertisers and marketers.

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