Monthly Archives: December 2012

Week of December 17, 2012 – A Roundup

As I was writing last week’s roundup, I was blissfully unaware of the horror taking place in Newtown, Connecticut. It seems unfathomable still to try to wrap my head around what happened. I’ve learned that the best way to deal with something so terrible is to take action. For things like Super Storm Sandy, that’s pretty easy to identify – help with the cleanup. But for the loss in Newtown, it’s a bit tougher.

So along with sending a donation to take care of the incidentals for Allison Wyatt’s funeral, I’ve decided to jump on board with Ann Curry’s suggestion to undertake a project of 26 acts of kindness, one for each of the victims. I like to offer random acts of kindness during the holiday season anyway, but this idea seems to add more purpose to that. I’m sharing this in the hopes that some of our readers will also be tackling a #26Acts project – feel free to share what you’re doing in the comments below! I prefer to keep mine anonymous, so I won’t tell you what I’ve been up to, but I’d love to hear about yours!

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ILN Today Post

Extensions of time after Mackay

The Honeywood File(1) is a hilarious account of the catastrophes befalling the design, construction and agreement of the final account for a domestic residence. The book purports to be the architect’s file of correspondence with all parties. It was written in the 1920s and was ready for an updated version. This has now been provided (possibly inadvertently) in the judgment of Mr Justice Akenhead in the case of Walter Lilly v Mackay(2). The judgment starts with many extracts from the client’s emails and letters, as opposed to the architect’s, but tells a similar tale of woe (or disaster, to use the judge’s description) over the design, construction and agreement of the final account on a residential project.

The judgment covers every possible element of a final account but this article is concentrating on just one – extensions of time under the JCT contract. More…

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ILN Today Post

Court uses statutory powers to protect administrators from full liability

Case review: Strawbridge, in the matter of Retail Adventures Pty Limited (Administrators Appointed) v Retail Adventures Pty Limited (Administrators Appointed) (No 2) [2012] FCA 1368

The Federal Court has utilised its discretionary power under section 447A of theCorporations Act 2001 (Cth) (Act) to limit the scope of an administrator’s general liability for debts incurred in the course of the administration arising under section 443A(1) of the Act.

Background to the administrators’ application

The administrators of Retail Adventures Pty Ltd (Company), one of Australia’s largest discount variety operators, entered into a licence agreement under which they had authorised a related entity of the Company, DSG Holdings Australia (DSG), to continue trading the business.  The parties subsequently agreed to amend their agreement in order to limit the personal liability of the administrators to DSG under the licence agreement.  It was the intention of the parties that the administrators would not incur personal liability to any party under the licence agreement. More…

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ILN Today Post

Early Christmas present for directors… but perhaps not for insurers

Bridgecorp decision reversed (Steigrad v BSFL 2007 Ltd & Ors [2012] NZCA 604) – Unfair contract terms legislation on its way for insurers 

In a decision that will be welcomed by directors here and across the ditch, the New Zealand Court of Appeal yesterday upheld the appeal in the Bridgecorp litigation determining that a charge under the Law Reform Act 1936 (NZ) does not give third party claimants priority over insurance money ahead of a director’s claim for defence costs. More…

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Clark Wilson closes acquisition of PIRET’s $102 million Richmond Portfolio

On December 20, 2012, Clark Wilson’s Commercial Real Estate Group assisted in the completion of PIRET’s $102.4 million acquisition of two multi-tenant industrial properties in Richmond, BC. The properties comprise approximately 1 million square feet and are leased on a long-term basis to distribution and logistics companies. Clark Wilson’s team was led by James Speakman and Shauna Towriss, with assistance from Rosemary John.

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New FMLA Forms for an Employee’s Own Serious Health Condition

The U.S. Department of Labor has updated its Family and Medical Leave Act (“FMLA”) forms.  The forms are not required but they are good resources to use since they include all of the information required by the FMLA.  Additional information and additional forms or notices may be required, however, for state and local leave.  The […]

For more information please visit www.omwemploymentandlaborlaw.com or click on the headline above.

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2012: A Retrospective

It’s hard to believe 2012 is coming to an end. It was a big year for us here, with the launch of Madison Ave Insights in October, and a notable one for the advertising industry. As always, agencies tried to top the year before with bigger and better creative, regulatory agencies stepped up oversight and enforcement, and technological advances happened at a pace that seemed like every minute. From the Super Bowl to Cannes to the Summer Olympics to the Presidential election, marketers have been busy year-round with how to balance rapid change and new technology with threats from regulators and competitors while doing great creative and effective advertising. This has been a very hard dance to learn.

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New FMLA Forms for an Employee’s Own Serious Health Condition

The U.S. Department of Labor has updated its Family and Medical Leave Act (“FMLA”) forms.  The forms are not required but they are good resources to use since they include all of the information required by the FMLA.  Additional information and additional forms or notices may be required, however, for state and local leave.

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Lone Pine’s Impact On Pharma Products Litigation

We have written previously about the increasing acceptance by courts to entertain the use of Lone Pine orders as a case management tool. For example, in the Happyland Social Club Fire Litigation, which involved 87 wrongful death claims, the Bronx Supreme Court’s entry in 1992 of a Lone Pine order was instrumental in obtaining dismissals on behalf of defendants whose products plaintiffs could not identify as being in the club at the time of the fire.

More recently, we discussed the use of a Lone Pine order by a Colorado state court in a hydrofracking toxic tort case. In that matter, the court dismissed the claims of plaintiffs who failed to submit sworn expert affidavits establishing a causal relationship between their illnesses and hydrofracking chemicals they claimed to have been exposed to.

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Beyond HIPAA: Other Privacy Laws That Telehealth Companies Need to Be Aware Of

While tech companies looking to provide health solutions must figure out early on whether they are HIPAA-regulated, HIPAA is not the be-all and end-all of privacy law. Even entities not regulated under HIPAA must abide by other privacy rules, including a wide array of state privacy laws. On December 6, 2012, in the state’s first legal action under its online privacy law, California Attorney General Kamala Harris filed a lawsuit against a major airline for not including a privacy policy in its smartphone app. The complaint alleges violation of California’s Online Privacy Protection Act, which requires certain operators of commercial websites and online services that collect personally identifiable information to conspicuously post privacy policies. Such laws that cover personally identifiable information in general have a much broader focus than HIPAA, which only targets covered entities and business associates exchanging medical information. Even companies not regulated under HIPAA must therefore take such state laws into consideration, and given the potentially severe penalties, noncompliance could be devastating—for example, California seeks penalties of $2,500 per violation, which the complaint defines as each copy of the app downloaded by California consumers. Moreover, simply having a privacy policy will not be enough. While the lawsuit targets the airline for not posting a privacy policy, state legislation and enforcement will be augmenting their focus on the content of such policies to ensure the adequate protection of consumer information.

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