Monthly Archives: February 2014

ILN Today Post

Cancellation of the Canadian Investment Visa Program

Arnstein & Lehr

Ronald R. Fieldstone

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.

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The Enforceability Of Employee Non-Solicits Remains Unclear In California

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.

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ILN Today Post

Text Message Wills?

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.

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Overbroad Handbook Policies May Constitute Unfair Labor Practices

By Maxine Nauheuser

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.

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ILN Today Post

Week in February 24, 2014 on ILNToday – A Roundup!

It’s another polar-vortex sort of day here in the northeast, with the temperatures back in the single or negative digits. So if you’re in one of those cold areas, grab a cup of hot chocolate (or some coffee) and take a break to read today’s roundup with this week’s top posts from ILNToday!

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ILN Today Post

Permitted development rights

On 30 May 2013, the government introduced changes to the planning system affecting permitted development rights.  The reforms aim to boost economic recovery and ease the national housing shortage, by putting into productive use vacant or underused office space.

The most controversial aspect of the reforms is a change to permitted development rights to allow change of use, without the need for a planning application, from office to residential use, for a limited three year period. More…

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ILN Today Post

News: Fraud in international payments

The susceptibility to fraud electronic correspondence and in particular online payment is generally known. So far manipulations focused on direct access to the damaged account itself, such as phishing and subsequent use of the account information for unauthorized withdrawals. This also target the common technical protection measures such as anti-Trojan software and firewalls on the defense foreign access to their own data. More…

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ILN Today Post

Negotiating Business Acquisition Agreements

Scope Note

This chapter provides a step-by-step analysis of how to draft and effectively negotiate business acquisitions agreements. The first half of the chapter describes each step on the acquisitions process in chronological order. The second half of the chapter focuses on practical negotiating strategies. Illustrative acquisitions documents are included as exhibits. 

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ILN Today Post

Drafting & Negotiating Massachusetts Contracts

Scope Note

This chapter provides a step-by-step analysis of how to draft and effectively negotiate business acquisitions agreements. The first half of the chapter describes each step in the acquisitions process in chronological order. The second half of the chapter focuses on practical negotiating strategies. Illustrative acquisitions documents are included as exhibits. 

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ILN Today Post

TSX Requires Majority Voting Policy

he Toronto Stock Exchange (“TSX”) recently amended its corporate finance manual to require each issuer to adopt a majority voting policy for its first fiscal year ended on or after June 30, 2014.

Under corporate law, a shareholder can only vote for a director or withhold their vote; they cannot vote against a director. As such, the directors with the most votes get elected, even if a majority of shareholders withheld their vote with respect to that director. A majority voting policy requires any director that is not elected by at least a majority of the votes cast with respect to his or her election to tender their resignation to the company. The company must decide within 90 days whether to accept the resignation, which it should do absent exceptional circumstances. The listed issuer must promptly issue a news release with the board’s decision, a copy of which must be provided to the TSX. If the board determines not to accept the resignation, the news release must fully state the reasons for that decision.

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