Monthly Archives: August 2012

NLRB Finds Application of Blanket Confidentiality Requirement During Pending HR Investigations Unlawful

by: D. Martin Stanberry and Donald S. Krueger

In the latest in a series of National Labor Relations Board (“Board”) decisions that expands its sphere of influence in non-unionized workplaces, a divided three-member panel of the Board found that an employer’s routine request that employees not discuss matters under investigation with their co-workers violated Section 8(a)(1) of the National Labor Relations Act because it “had a reasonable tendency to coerce employees.” Banner Health System 358 NLRB No 93 (July 30 2012)

In reaching its conclusion, the Board brushed aside the employer’s “generalized concern with protecting the integrity of the investigation.” The Board did suggest, however, that confidentiality may be appropriate, and lawful, if the employer can show: (1) the need to protect witnesses; (2) a likelihood that evidence may otherwise be destroyed; (3) the threat that subsequent testimony would be fabricated; or (4) the need to prevent a “cover-up.” Unfortunately, the Board offered no guidance as to what type of proof (general or specific, subjective or objective) is required to meet this burden.

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Real Estate Title Issues in Hospital M&A Transactions

My earlier post explored various real estate strategies frequently used in hospital M&A transactions.  Each of those different approaches – using real estate assets to secure acquisition financing, increasing existing lines of credit, or monetizing the real estate assets through divestiture – reflect different objectives and opportunities.  But, real estate is more than “location, location, location” and “strategy, strategy, strategy”—there must also be “value, value, value”.  The real estate market itself is the lynchpin to establishing the value of individual properties, but the value of hospital properties is frequently affected by dynamics somewhat unique to hospitals. Often, a hospital will expand its footprint by purchasing multiple smaller parcels over the years.  And, for many older hospitals, that can mean almost a century.  Due to the multitude of smaller parcels and the lengthy time-span over which the properties may have been acquired, you may frequently find older title encumbrances that potentially affect the value of the hospital properties and, in turn, cause insurability concerns for many title companies.  We see several re-occurring title issues in hospital M&A transactions.

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Women General Counsel Are Gaining Ground in America

by Wendy G. Marcari

A new progress report from the Minority Corporate Counsel Association (MCAA) reveals a significant increase in the number women general counsel among Fortune 500 companies. Women now hold the top legal position at 21% of Fortune 500 companies, reaching an unprecedented high of 108 women in 2011, up from 44 women in 1999 when MCCA began tracking this information. Six states account for half the list: California, New York, Texas, Illinois, New Jersey and Virginia. Women general counsel also are increasingly diverse; 16% of the group identified themselves as minorities.

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ILN Members in Sweden, Italy, Liechtenstein & Switzerland Collaborate

ILN members are working together all the time, and sometimes they pick their noses up from the grindstone to share one of their successes with me. Here’s a story about an excellent collaboration among ILN firms in Sweden, Italy, Liechtenstein and Switzerland.

In 2010, Thomas Ekenberg and Johan Sund of Ekenberg & Andersson Advokatbyra, Sweden, were retained by an Italian-American client requesting legal advice regarding an investment in Stockholm – namely, the purchase of an apartment and the opening of an art gallery. The origin of the client’s financial resources, which were necessary to proceed with the investment, consisted of an inheritance of considerable value – his portion amounted to around 80 million Euros worth of real estate and other assets – received from his mother in 2002, and originating from the client family’s prominent involvement in the Italian real estate business as far back as the 1930s.

The client claimed that he had been prevented from being fully aware of the majority of the information concerning the Italian patrimony, and from having any direct control of the interests of his assets. As a matter of fact, since his mother’s passing, the client’s interests had been deceitfully managed by his elder brother.


Therefore, the client asked Ekenberg & Andersson Esq. to assist and advise him in acquiring full control and direct management of the assets, which were acquired pursuant to the inheritance from his mother. The need of assistance depended mainly on the contrast between the client and his three siblings, who were all made into pro quota beneficiaries of the family’s assets by means of a complex trust and corporate structure involving the jurisdictions of Panama, Liechtenstein, Luxembourg, Hong Kong and Italy; the latter country is where all of the real estate and operative companies are located.

As of December 2010, Thomas Ekenberg and Johan Sund involved Antonello Corrado, from the ILN Italian law firm of Corrado Ferrari Mainieri Pedeferri & soci, with whom they have established a strong collaboration for the assistance to the client. In relation to legal advice and assistance concerning the Liechtenstein jurisdiction, the law offices of Harry Gstoehl & Partner have also been involved, as well as wehinger kaelin ferrari ag, Switzerland.

The ILN firms have now successfully acquired, and are continuing to acquire thorough knowledge and control of the trust and corporate structure, full control of the assets for the client, and, in order to achieve and maintain the full and direct management of his interests, are continuing to provide legal advice.

The collaboration among the firms will likely extend to other jurisdictions, namely the UK, where collateral assistance is required.

The client has expressed full satisfaction with the assistance he has received, and has come to the decision to assign full responsibility of the management of his assets and investments, located in Sweden, Italy, and Germany, to Mr. Thomas Ekenberg, Mr. Antonello Corrado, and his attorney and legal advisor in Berlin, where the client made relevant investments in the real estate business some years ago.

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Economic growth needed to prevent further redundancies

The CIPD has published the results of recent research, which reveal that a third of UK companies are continuing to employ staff they currently don’t need in order to retain their skills. However, the research also found that these companies can’t continue to do this indefinitely, and redundancies will be inevitable if the economy doesn’t start to grow.

“This is a make or break moment for employers – unless growth picks up many will find that they cannot hold on to some workers any longer,” said Gerwyn Davies,  Labour Market Adviser at the CIPD. “The tenacity with which employers are hanging on to skilled labour is a reflection of the high value they place on it and the damage they fear will be done to their businesses if they are forced to start making more redundancies.”

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ILN Today Post

Karolina Miara comments in Dziennik Gazeta Prawna on the Social Insurance Institution’s activities regarding the calculation of retirement benefits

“The Social Insurance Institution puts the responsibility for low payment of benefits onto pensioners”

Karolina Miara, advocate, social insurance specialist, was interviewed by Dziennik Gazeta Prawna on the Social Insurance Institution’s  practice of placing the burden of proof of employment periods and amount of earnings onto future pensioners.

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Minimum Pleading Standard for Whistleblower Cases Reset – ARB Rejects Supreme Court’s "Plausibility" Standard, Holds "Fair Notice" Is Sufficient for Administrative Complaints to Survive Dismissal Motion, and Gives Complainant a Chance to Amend

by Allen B. Roberts, Stuart M. Gerson, Frank C. Morris, Jr., and Michael J. Slocum

Our previous postings have noted the progression of decisions during the past two years by the U.S. Department of Labor (“DOL”) Administrative Review Board (“ARB”) that have liberally expanded substantive provisions of whistleblower statutes under its jurisdiction. Now, the ARB has enabled whistleblowers to maintain their administrative complaints and survive dismissal in circumstances where recital of the factual bases of their claims would be fatally deficient if filed in federal court instead of a DOL administrative proceeding. The currently constituted ARB has rejected the heightened pleading standards, announced by the U.S. Supreme Court and applicable in federal district courts, requiring that a complaint set forth sufficient factual allegations to “state a claim to relief that is plausible on its face.” Instead of that judicial standard, the ARB has elected to require that an administrative whistleblower complaint filed before the Occupational Safety and Health Administration (“OSHA”) and the DOL’s Office of Administrative Law Judges (“OALJ”) need only “give ‘fair notice’ of the protected activity and adverse action” in order to withstand a motion to dismiss; and complainants are afforded “sufficient opportunity to amend or supplement” a complaint that does not measure up in the first instance. Evans v. U.S. Environmental Protection Agency, ARB Case No. 08-059 (July 31, 2012).     

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Blogging for Clients: How Online Relationships Lead to Real-World Clients (A Re-cap) Part I

Recently, I had the chance to sit in on a webinar with Kevin McKeown of LexBlog and Lee Frederiksen of Hinge Marketing, as they discussed the topic of blogging for clients, focusing on how online relationships can lead to real-world clients.

Since this is a meaty topic, I’ll be breaking this up into multiple posts.

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ILN Today Post

Free Medicines for All

The GoI is planning to distribute free medicines across India through Government hospitals as also making such medicines available through Government stores at a nominal price.

The GoI model is inspired by the “Medicines Supply Corporation’ established in the State of Tamil Nadu in India, which procures generic medicines in bulk at almost 1/20th of the market price, and supplies them to the in-house patients in the Government hospitals. The Central Government is planning to set-up a similar ‘Central Procurement Agency’ (“CAP”) to procure generic medicines in bulk and at cheaper rates, to be distributed across India in cooperation with the state governments. The CPA will also be responsible for specifying uniform standards for procurement of the medicines, and to monitor the procurement process.

This ambitious initiative of the GoI is expected to take a couple of years of pre-implementation planning.

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ILN Today Post

Government to Implement Advance Pricing Arrangements

The Government of India (“GoI”) has decided to give a breather to various multinational companies having business in India, from the aggressive tax administration in transfer pricing matters. The GoI has confirmed that it will soon notify guidelines for Advance Pricing Arrangements (“APAs”).

In common parlance, APAs are agreements executed in advance between tax payers and the tax authorities with respect to pricing of transactions between the foreign and local entities of the same group, operative for a specific period. Transfer pricing norms seek to prevent manipulation of prices in transactions between related parties, which manipulation may lead to transfer of income from high tax jurisdictions to lower tax jurisdictions. In the process, the high tax jurisdiction tends to lose on tax collections. Administration of transfer pricing norms leads to tax disputes and transfer pricing adjustments.

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