Ledelsesrettens grænser er en svær disciplin i praksis

Ledelsesrettens grænser er i praksis en svær disciplin, idet grænserne ikke er entydigt bestemt, og indholdet af ledelsesretten kan variere fra fagområde til fagområde, ligesom ledelsesrettens intensitet er afhængig af samfundsudviklingen. Ledelsesrettens intensitet kan være forskellig
fra virksomhed til virksomhed inden for sammenlignelige

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CSA Publishes Proposed Amendments to Take-Over Bid Requirements

by Andrew Charters

On March 31, 2015, the Canadian Securities Administrators (the “CSA”) published proposed amendments to Multilateral Instrument 62-104 Take-Over Bids and Issuer Bids and National Policy 62 203 Take-Over Bids and Issuer Bids (the “Proposed Amendments”). If adopted, the Proposed Amendments will significantly change Canada’s take-over bid rules.

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Regulation A+ A Limited Tool for Fundraising

by Bernard Pinsky

With much fanfare, the Securities and Exchange Commission (“SEC”) in the U.S. announced on March 25, 2015 that it has adopted rules to facilitate smaller companies’ access to capital, as mandated by the JOBS Act. Sums of up to $20 million can be raised in a Tier 1 offering, while up to $50 million can be raised in a Tier 2 offering under the new, updated and expanded Regulation A (“Reg A”), known as Reg A+. As adopted, Reg A+ can be used only by qualified companies that are organized in, and that have their principal place of business in, the United States or Canada.

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Amendments to Disclosure Rules for Venture Issuers

by Nafeesa Valli-Hasham

On June 30, 2015, amendments to various disclosure requirements for venture issuers will come into force. The amendments are intended to make the disclosure requirements for venture issuers more suitable and manageable at their stage of development. The amendments relate to continuous disclosure and governance obligations, and to disclosure for prospectus offerings.

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Supreme Court Strikes Down Mandatory Firearm Sentences

The Supreme Court of Canada has struck down the government’s mandatory minimum jail sentences of three years for illegal gun possession and five years for possession of firearms by repeat offenders as amounting to cruel and unusual punishment under the Canadian Charter of Rights and Freedom (“Charter”).
In R. v. Nur, 2015 SCC 15, two appeals were heard jointly.  The first involved an incident in Toronto’s Jane and Finch neighbourhood.  In January of 2009, a young man entered a community centre in the neighbourhood and told a staff member that he was afraid of someone who was waiting outside to get him.  The staff member saw a person waiting outside who looked threatening.  The neighbourhood had high levels of crime and gun violence was a problem.  The supervisor of the community centre put the centre on lockdown and called the police.  When the police arrived, they saw four men standing at the entrance to the community centre.  Hussein Nur was among them.  As an officer chased Nur he threw something away.  The police later found a loaded handgun under a parked car.  The gun was of a type that was prohibited under the Criminal Code.  Nur was not found to be involved with the threatening behaviour. 
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“DOL Seeks Comments on Proposed Retirement Advice Rule,” Toni Pilzner quoted in HR Magazine

The U.S. Department of Labor issued a proposed rule on April 14, 2015, that would impose a stricter fiduciary standard on those providing retirement investment advice. While some of the concerns behind the proposal involve conflicted investment advice to individual retirement account (IRA) holders, the sweeping rule would also change how advice is provided to participants in 401(k) and other defined contribution plans.

Under the DOL proposal, those advising holders of 401(k) plan accounts, IRAs and other self-directed retirement plan accounts must following the so-called “fiduciary standard” by only offering advice that can be shown to be in clients’ “best interest,” and by disclosing any potential conflicts of interest, as opposed to recommending products that are deemed to be broadly “suitable” but may reward the advisors more than competing, lower-fee investment funds.

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Chicago District Judge Issues Primer On Declaratory Judgment Actions Regarding The Enforceability Of Non-Compete Agreements

Last week, Chicago district judge Charles Kocoras dismissed a declaratory judgment action challenging the enforceability of a facially broad form non-compete agreement signed by all employees of the Jimmy John’s sandwich chain.  Judge Kocoras held that the dispute was not judiciable because the plaintiffs lacked the requisite “reasonable apprehension” of litigation against them and because they failed to allege that they had actually engaged in conduct that would violate the non-compete.  (Judge Kocoras’ memorandum opinion also addressed significant joint employer, franchisor/franchisee, and FLSA issues which are beyond the scope of this blog.)

As an initial matter, Judge Kocoras noted that “[t]he Seventh Circuit has not addressed whether a claim for declaratory relief is judiciable in the context of non-compete provisions.”  Nevertheless, borrowing from an analogous Seventh Circuit decision involving a patent infringement/declaratory judgment action, Judge Kocoras held that in order to establish the existence of an actual case or controversy sufficient to support a claim for declaratory relief in the non-compete context, the plaintiffs must clear two threshold procedural hurdles.  “First, the Plaintiffs must have a ‘reasonable apprehension’ that the Defendants are going to file a lawsuit against them for violating the Non-Competition Agreement. Second, the Plaintiffs must allege that they were preparing to engage or had engaged in conduct that would compete with the Defendants.”

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A Call to Comment for Telemedicine Stakeholders: The Cadillac Tax

DOTAs discussed previously on this blog, employers are increasingly turning to telemedicine as a way to cut employee health care costs and improve bottom lines. The trend will be accelerated by the impending Cadillac Tax, a 40 percent excise tax on the excess of the cost of an employee’s applicable coverage over the employee’s applicable dollar limit. In February, the Treasury and IRS released Notice 2015-16 (the “Notice”), kicking off the process of developing regulatory guidance regarding the Cadillac Tax. Specifically, the Notice addresses the following issues: 

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Private rented accommodation and tenancy deposit schemes

This article is concerned with the way in which Scottish courts are interpreting the (fairly new, at time of writing) tenancy deposit schemes.  These are given effect by Part 4 of the Housing (Scotland) Act 2006, and the Tenancy Deposit Schemes (Scotland) Regulations 2011 (the “Regulations”).

The type of landlord caught by the Regulations is a person other than a local authority, registered social landlord, or Scottish Homes.  The type of tenant similarly caught are those who are not a member of the landlord’s family.

In reality, this means that the Regulations will cover any ‘arms length’ private letting of residential property.

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Data Privacy and Cybersecurity Alert: The Art of (Cyber) War: Cybersecurity Tactics for All Financial Institutions

n today’s rapidly changing technological age, with personal, financial and health information stored on devices, Internet, and in the cloud, cyber and data security controls and programs are critical. As financial institutions of every type and size – national, regional and community banks, thrifts, mutuaIs, credit unions, and non-bank lenders – increase their collection of personal information about their customers and employees, they become larger targets for a data privacy incident. Breaches can have a devastating effect to the bottom line of an organization and to its reputation. Institutions must be mindful of this battle on four fronts; external threats, intentional misappropriation by rogue employees, data accidentally lost or misplaced, and vendor negligence. Financial institutions are truly in a cyber war and proper tactics and strategy are essential for survival.

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