On Friday 21 February 2014, the Australian Competition and Consumer Commission (ACCC) released its 2014 Compliance and Enforcement Policy (2014 Policy). The 2014 Policy provides a valuable insight into the ACCC’s enforcement priorities for the forthcoming year and, based on past experience, it is reasonable to expect that much of the ACCC’s enforcement activity in the immediate future will be in the areas identified in the 2014 Policy. Accordingly, the 2014 Policy highlights areas of high competition and consumer law regulatory risk for businesses. More…
The Queensland Government is preparing a new regional plan for South East Queensland to accommodate the one million new homes projected to be needed by 2041.
This will include identifying future growth areas with a predicted need to allocate almost 20,000 hectares of new land for greenfield development. More…
Pruning the ‘ever-branching maze of hypothetical enquiry’ Prepaid Services v Atradius (No.2)  NSWSC 2
- In the latest, and possibly final, instalment of the Prepaid Services v Atradius Credit InsuranceNV saga, the Supreme Court of New South Wales has again allowed Atradius to reduce its liability to nil for innocent misrepresentation pursuant to section 28(3) of the Insurance Contracts Act 1984 (Cth) (the Act).
- After the New South Wales Court of Appeal found that his Honour’s initial consideration of the issue was incomplete, McDougall J had to make the hypothetical inquiry as to whether Atradius would have issued the policy had proper disclosure been made and Prepaid given the opportunity to provide further information (the likely result of full disclosure).
On February 25, 2014 Cooper & Dunham sponsored a program at the Fordham Intellectual Property Institute entitled “A Conversation with Honorable Denny Chin — Litigating, Judging and Intellectual Property Law.” The program was moderated by Professor Hugh C. Hansen, Director of the Intellectual Property Institute.
Intellectual Property Alert: No matter who brings the case patentee bears burden of proving infringement
The Supreme Court unanimously held that a patentee bears burden of proving infringement in a declaratory judgement action brought by a licensee. In Medtronic, Inc. V. Mirowski Family Ventures, LLC, Medtronic entered into a licensing agreement that permitted it to practice certain Mirowski patents in exchange for royalty payments. Medtronic brought a declaratory judgment action against Mirowski, arguing that certain products did not infringe the patents of the license agreement and that these patents were invalid. The district court and Federal Circuit reached the opposite conclusions on which party bears the burden of providing infringement. The district court placed the burden on the patentee and the Federal Circuit placed the burden on the licensee-plaintiff.
Lidings provided legal support to China Development Bank in granting a special purpose loan to a Russian Vnesheconombank to finance construction of a large multifunctional complex in Moscow.
Arnstein & Lehr Miami Partner Ronald Fieldstone was quoted in the February 28 EB5News.com article, “Industry Reaction to the Cancellation of the Canadian Investment Visa Program.” EB5News.com asked the opinions of attorneys involved with the EB-5 Immigrant Visa Program about the effects this will have on the United States.
Mr. Fieldstone had this to say: “There is a pent-up demand for wealthy Chinese to emigrate to western countries. Therefore, these investors will now actively look to the well-established EB-5 program in the United States for relief.”
To read the article in full, please click here.
The high profile lawsuit filed on February 11, 2014 by Anschutz Entertainment Group against Shervin Mirhashemi and his new employer, Legends Hospitality, LLC, again raises the question of when a California Court of Appeal will decide whether employee non-solicits are enforceable in California. The Complaint alleges that Mirhashemi started as an AEG in-house attorney and was promoted over time to executive positions and was paid millions of dollars. The Complaint also alleges that Mirhashemi signed various employment agreements at least one of which provided, in part, that he would not “directly or indirectly” “participate in any effort to entice away from [AEG] … any person who is employed by [AEG].”
Is the foregoing language an enforceable covenant or a violation of California public policy?
The 1985 California Court of Appeal decision in Loral Corp. v. Moyes, 174 Cal. App. 3d 268 (1985) held that the employee non-solicit provision at issue was enforceable for at least one year because California Business & Professions Code §16600 “does not necessarily affect an agreement that delimits how he can compete.” Id. at 276. It concluded that the employee non-solicit was enforceable because it “only slightly affects” the employees at issue. Id. at 279.
When the California Supreme Court rendered decision in Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937 (2008) and held that customer non-solicits were unenforceable, it noted that Edward’s agreement likewise contained an employee non-solicit, but since Edwards did not dispute that portion of the agreement or contend that it was unenforceable, it did not address the employee-non-solicit in its holding. Id. at fn. 4. The Court in Anderson held that all non-competes that do not fall within the three statutory exceptions are invalid and it further held that the “limited” or “narrow” restraint exception developed by the Ninth Circuit was not the law in California. Based on the analysis in Edwards, it is unclear whether the Loral Court’s conclusion that a provision which “delimits how [an employee] can compete” and is enforceable because it “only slightly affects” employee mobility can be squared with Anderson’s holding that there is no narrow restraint exception in Section 16600.
The determination of this issue will resolve a significant open issue in California unfair competition law.
As we indicated previously, when WESA comes into force on March 31, 2014, the courts will have discretion to accept for probate a document or record that does not meet the formal requirements for the execution of wills. BC courts have not had this discretion in the past. Pursuant to section 58 of WESA, the court may order that any “record, document or writing, or marking on a will or document” be fully effective as though it were a valid will, if the court is satisfied that it represents the testamentary intentions of the deceased. Electronic records are included in the definition of “record”. Bearing this in mind, a recent blog post by Hull & Hull LLP titled “Court Refuses to Accept Text Messages as a Will” is particularly interesting.
As we have discussed on a number of prior occasions (Fifth Circuit Rejects The NLRB’s D.R. Horton Decision On Arbitration Waivers; Obama’s Labor Agenda Continues to Advance – Griffin Confirmed as NLRB GC; NLRB Administrative Law Judge Finds Medical Center’s Technology Usage Policies Violated Employees Rights Under the National Labor Relations Act. and Labor Law vs. Common Sense – NLRB Continues Targeting Non-Union Employers and Common Sense) the National Labor Relations Board (“NLRB” ) and its Administrative Law Judges continue to find that employment policies designed to provide protection to employers and employees may be unfair labor practices (ULPs) under the Act.