Monthly Archives: May 2012

No Duty To Disclose To Prospective Homeowners

What is the duty of a real estate developer to disclose to prospective residential purchasers information about the neighborhood that may adversely impact property values? Apparently none if the developer is not in privity with the homeowners, according to the Eleventh Circuit.

On May 21, 2012, Law 360 reported on the Eleventh Circuit’s decision in Luis Virgilio v. Terrabrook Vista Lakes L.P., et al. , Case No. 11-11027 (5/18/12).  We have discussed in a past article the circumstances under which a commercial  real estate broker may be found have a duty to disclose environmental liabilities to a prospective purchaser.  Here, the court was clearly troubled by the question of how far the developer’s potential liablity to disclose “inside information” would extend and how an obligation to disclose this information could be satisfied.. 

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Regulation of business and investment lending

Treasury is currently considering options for regulation of business and investment lending. Did you know that to a large extent it is already regulated?

Most credit businesses are Australian credit licensees or credit representatives, and so are members of an external dispute resolution (EDR) scheme.

The jurisdiction of EDRs extends to credit provided to individuals (ie natural persons) and small businesses irrespective of whether the credit is regulated by the National Credit Code. Accordingly, loans to individuals and small businesses for investment purposes (eg to buy shares, buy art work, general business finance) can be the subject of disputes at EDR. (Loans to individuals to purchase or refinance residential investment properties are already subject to the National Credit Code and margin loans are financial products so these borrowers already have access to EDR.) More…

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New York’s At-Will Employment Rule Applies To Compliance Officer Allegedly Fired For Objecting To Misconduct

By:  William J. Milani and Anna Kolontyrsky

The New York Court of Appeals has rejected a wrongful discharge cause of action brought by a hedge fund compliance officer who claimed that he was terminated for questioning a series of personal stock trades by the company’s president.  Sullivan v. Harnisch, No. 82 (N.Y. May 8, 2012) (PDF)

Sullivan, who was the Chief Compliance Officer, Executive Vice President, Treasurer, Secretary and Chief Operating Officer of the hedge fund, was terminated after confronting the hedge fund’s president about stock trades that Sullivan believed amounted to “front-running.”  In other words, Sullivan claimed that the trades took advantage of an opportunity from which the firm’s clients were excluded.  Sullivan argued that his termination constituted a breach of implied contract. Based on the legal and ethical duties of his securities firm and his position as a compliance officer, Sullivan asserted that the Court should expand an existing exception to the employment-at-will doctrine to his situation as a compliance officer who was fired for objecting to misconduct.

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Energy Forum from McDonald Hopkins Law Firm: The Emerging Natural Gas Vehicle (NGV) Market on June 7, 2012

Cleveland, Ohio (May 22, 2012) – The Emerging Natural Gas Vehicle (NGV) Market will be discussed at the McDonald Hopkins Energy Forum on June 7, 2012. The Energy Forum will provide timely information on how natural gas technology is on the fast track. The market for NGVs is rapidly increasing, especially for commercial use vehicles.

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OSHA Announces Creation of the Whistleblower Protection Advisory Committee, In Effort to Improve Efficiency and Transparency of Whistleblower Protection Program

The Occupational Safety and Health Administration (“OSHA”) announced in a May 17, 2012 notice published in the Federal Register that it will establish a Whistleblower Protection Advisory Committee (“Committee”) in an effort “to improve the fairness, efficiency, effectiveness, and transparency of OSHA’s whistleblower protection activities.” Creation of the Committee follows OSHA’s March 2012 reorganization providing for direct reporting to the Department of Labor’s Office of the Assistant Secretary, and further evidences the agency’s intention to devote increased efforts and resources to this area in the future. 

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Lefèvre Pelletier & associés, Avocats (LPA) counsel to the African Development Bank (AfDB) granting a USD 250,000,000 loan to the Office Chérifien des Phosphates (OCP)

OCP and the AfDB signed on Thursday 10th May in Casablanca, a loan agreement of USD 250 million under the investment program of OCP. This agreement is the first non-sovereign financing of the AfDB to a Moroccan company.

The purpose of this loan is to finance the construction of the industrial platform of Jorf Lasfar Hub, which ultimately will be home to several chemical complexes in order to increase local processing capacity of phosphate derivatives (phosphoric acid and fertilizers). This will contribute to the Global Program of Development of African agriculture to increase agricultural production and food security. More…

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ATO taxes employee health

A recent decision in the Administrative Appeals Tribunal (AAT) about how much Fringe Benefits Tax an employer was liable for on a subsidized health insurance program provided to employees highlights the practical problems employers face in making sure they meet their obligations to provide a safe system of work. Gadens Brisbane acted for the employer in this case.

Lake Fox Limited (Lake Fox) is a major Australian trucking company which, in addition to its general transport operations, is a specialist mover of explosives for the mining industry and provides logistics support for defence organisations. More…

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Complimentary Webinar – Preparing for and Managing an OSHA Workplace Safety & Health Inspection

Join us Wednesday, June 20, 2012 at 9:00 am EST either by Webinar or in person for a complimentary briefing presented by Epstein Becker Green attorneys Eric J. Conn and Amanda R. Strainis-Walker of the Firm’s national OSHA Practice Group.

The briefing will cover actions that employers can take now to prepare their workplaces and workforce for unexpected visits from the Occupational Safety and Health Administration (OSHA), review employers’ and employees’ rights during an OSHA inspection, and discuss inspection strategies to ensure the best possible outcome from an inspection.  Topics to be covered include:

  • OSHA’s current philosophy of enhanced enforcement
  • OSHA’s Severe Violator Enforcement Program and campaign of public shaming
  • Employers’ and employees’ inspection rights
  • Steps employers should take before OSHA begins an inspection
  • Circumstances under which employers should consent to an OSHA inspection or, alternatively, require OSHA to obtain an inspection warrant
  • The stages of an OSHA inspection, with practitioner’s tips about each stage

Registration is Complimentary.

For more information about the event, click here.

To register, click here.

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Agency Bill Signed into Law (21.5.2012)

The Protection of Employees (Temporary Agency Work) Act, 2012 was signed into law on 16th May 2012. The Act requires hiring employers to treat temporary agency workers no less favourably in relation to basic working and employment conditions than if they had been hired directly by the hiring company. The term “basic working and employment conditions” is defined in the Act and includes pay, annual leave working time and res…

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Oil and Gas Alert: Despite earthquake, deep injection wells continue to play a major role in Utica and Marcellus activities


The Ohio Department of Natural Resources (ODNR) determined that an earthquake in Youngstown, Ohio, which measured 4.0 on the Richter Scale on December 31, 2011, was caused by a Class II deep injection well. The Youngstown New Year’s Eve earthquake had been preceded by a number of minor seismic events between March and December of 2011 in the same area. ODNR based its determination regarding the cause of the earthquake on a number of factors. Its most important conclusion is the fact that the well had been improperly positioned over an existing fault line.


Other factors include:


  • The New Year’s Eve earthquake originated in the same location as the Youngstown well with an epicenter on a fault line 9,842.5 feet below the surface, approximately the same depth as the well’s injection site.
  • The seismic activities at the site coincided with injections to the well.
  • Seismic activities did not begin in 2011 until after operation of the well had commenced.
  • Other than the 2011 seismic activities, Youngstown is not a seismically active area.
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