North America

Forum Selection Clauses Govern

Preymann v. Ayus Technology Corporation, 2012 BCCA 30

The latest word on the enforceability of forum selection clauses.

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Contract Enforceability is a Matter of Substance over Form

Hoban Construction Ltd. v. Alexander, 2012 BCCA 75

Does a handwritten document, hastily drafted and signed in a gravel pit, constitute a legally binding contract?

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The Court of Appeal Settles the Priorities between Lien Claimants and Mortgagees

Bank of Montreal v. Peri Formwork Systems Ltd. 2012 BCCA 4

The latest word from the Court of Appeal on priorities between lien claimants and mortgagees and their receivers.

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The Obligation of Good Faith on Derivative Applications Narrowed

Holdyk v. Adolph, 2012 BCCA 37

Does the intention to wind up a company demonstrate a lack of good faith for those seeking to bring a derivative action?

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Construction Contracts for Projects in Canada: AIA Documents and CCDC Comparison

By Roy Nieuwenburg

Over the weekend, Roy Nieuwenburg’s article, “Construction Contracts for Projects in Canada: AIA Documents and CCDC Comparison”, was debuted at the USLAW Conference in San Antonio, Texas in the Spring/Summer edition of USLAW Magazine.

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Duty of Good Faith and Honest Performance Extended to All Contracts in Canada

By Warren Brazier with Shauna Towriss

On November 13, 2014, the Supreme Court of Canada updated Canadian common law by extending for the first time the principle of good faith to all contracts. Previously, the duty of good faith existed only in employment and insurance contacts in Canada. The ruling now aligns Canadian common law with Civil Law in Quebec and the law in most U.S. jurisdictions. The Court expects its decision to bring certainty and coherence to this area of law.

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New Second Circuit Opinion Provides Guidance for Employers with Unpaid Interns

On July 2, 2015, the U.S. Court of Appeals for the Second Circuit reversed a federal district court decision that held that unpaid interns should have been classified and paid as employees under both the federal Fair Labor Standards Act (“FLSA”) and the New York State Labor Law. Glatt v. Fox Searchlight Pictures, Inc., Nos. 13-4478-cv, 13-4481-cv (2d Cir. July 2, 2015). The Second Circuit’s decision provides valuable guidance to employers with unpaid interns.

In the case, the Second Circuit noted the U.S. Department of Labor’s (“DOL’s”) 1967 and 2010 informal guidance on “trainees” and “interns” respectively, and specifically the DOL’s six-part test regarding the “intern” exception to the definition of “employee” under the FLSA. The Second Circuit found the factors considered by the DOL to be useful, but expressly declined to defer to the DOL’s guidance requiring that ALL six parts be met to find non-employee status. Further, the Second Circuit stated that, unlike court deferral to an agency’s interpretation of its own statute or regulation, the DOL here was interpreting the Supreme Court’s decision in Walling v. Portland Terminal Co., 330 U.S. 148 (1947) and had no special expertise in interpreting court decisions.

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NLRB and ALJ Strike Down Button & Stickers Bans

Kate B. RhodesLast month, in two separate cases, the National Labor Relations Board (“NLRB” or the “Board”) and an NLRB Administrative Law Judge (“ALJ”) found against employers in cases involving the right of employees to wear union insignia at work. While the Board has long held that wearing union t-shirts, stickers and the like is a form of concerted protected activity protected by Section 7 of the National Labor Relations Act (“Act” or “NLRA”), it has historically recognized the right of employers to limit this when necessary to maintain an appropriate atmosphere, these decisions evidence a significant limitation on employers rights in these cases. However, as we have been reporting, Board and its General Counsel have been reexamining numerous precedents and finding that policies and practices deemed lawful interfere with employees’ rights under the Act.

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Baker’s Dozen: Quick and Easy Tips for Negotiating Commercial Leases in 2015

Brooklyn, Manhattan, and Queens’ office and retail leasing markets are booming as rents continue to rise through the second quarter of 2015. The surge in leasing has gone hand in hand with strong employment growth with businesses of all sizes desiring to set up shop in New York City. Retail, industrial, and office tenants have flocked to capitalize on this surge in growth and opportunities. In addition, entrepreneurship, technology and creative firms are seeking more office and retail space for their growing businesses, especially in Brooklyn and Downtown Manhattan.

The following are a dozen quick and easy tips for office and retail tenants negotiating commercial leases in 2015.

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Florida Restrictive Covenant Statute Remains “Truly Obnoxious” In New York Courts

If you are an employer with employees in New York (or elsewhere) who have signed an agreement containing a Florida choice of law clause and non-compete and/or non-solicit restrictive covenants, it may be time to revise your agreement.

We blogged last year regarding a decision of the New York Appellate Division, Fourth Department in Brown & Brown, Inc. v. Johnson, holding that a Florida choice of law provision in an employment agreement among a Florida corporation, its New York subsidiary, and a New York based and resident employee containing restrictive covenants is unenforceable because certain elements of the Florida restrictive covenant statute are contrary to New York public policy.

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