Monthly Archives: July 2014

ILN Today Post

HOWARD & HOWARD EXPANDS ROYAL OAK OFFICE

Royal Oak, Michigan, July 16, 2014:  Howard & Howard Attorneys PLLC is pleased to announce that Daniel L. Villaire Jr. has joined the firm.  He will practice out of the firm’s Royal Oak Office.

Mr. Villaire concentrates his practice in employment law and litigation. He represents public and private employers in individual and class/collective employment actions, including cases involving the FMLA, the ADA, the ADEA, Title VII, the FLSA, the EEOC, employment agreements and collective bargaining agreements. He also drafts and assists employers enforcing severance agreements, covenants not to compete and confidentiality/trade secret agreements.  More…

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ILN Today Post

AN ECONOMIC BLUEPRINT FROM A FRESHLY MINTED GOVERNMENT

The Union budget was a clear articulation of the Bharatiya Janata Party’s (BJP’s) economic thinking with a well-defined to-do list comprising the following instructions to itself:

  • Lay down the institutional structure.
  • Get the investment cycle kick-started.
  • Don’t do it yourself—just be the facilitator.
  • Choose the biggest accelerators.

More…

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Court of Appeal in the position of a Trial Court in Wills Variation Appeals

In Eckford v. Vanderwood, 2014 BCCA 261, the British Columbia Court of Appeal (the “Court”) was faced with an appeal of a wills variation action.  At trial, the application to vary the Will was denied.  On appeal, the Court dismissed the appeal and upheld the trial decision, thus refusing to vary the Will.

The common law spouse (“Ms. Eckford”) of the will-maker (“Mr. Vanderwood”) sought to vary the Will pursuant to section 2 of the Wills Variation Act (“WVA”, now repealed).  This section has remained unchanged in the new Wills, Estates and Succession Act (“WESA”); the relevant provision of WESA is section 60.  Ms. Eckford and Mr. Vanderwood had been living in a marriage-like relationship for approximately four years before Mr. Vanderwood died unexpectedly in a motor vehicle accident.

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ILN Today Post

Unjust and unconscionable contracts – a lender’s nightmare

Lenders can have their loans and security declared void if the transaction is found unjust or unconscionable as graphically demonstrated by a recent NSW Supreme Court decision.

The lender claimed possession of properties owned by a husband and wife provided as security for a loan to assist their children.  The parents had previously provided guarantees for their children’s loans.  However, in this case the loan was documented on the basis that the parents were the primary borrowers.  More…

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Two for One: Noel Canning and D.R. Horton Continue to Generate Waves at the NLRB

By: Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry

In case you were hoping that the Supreme Court’s recent decision in Noel Canning would finally put to bed any questions regarding President Obama’s recess appointments to the NLRB, or that the Fifth Circuit’s rejection of the Board’s decision in  D.R. Horton might alter the NLRB’s position on the right of employers to require employees to abide by mandatory arbitration agreements , think again.

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California Employers Must Revisit Exempt Status of Commissioned Employees In Light of Supreme Court Ruling

By: Amy B. Messigian

In a major blow to California employers who utilize a monthly commission scheme but pay biweekly or semimonthly salary to their commission sales employees, the California Supreme Court ruled earlier this week in Peabody v. Time Warner Cable, Inc. that a commission payment may be applied only to the pay period in which it is paid for the purposes of determining whether an employee is exempt from overtime.  Employers may not divide the commission payment across multiple pay periods in order to satisfy the minimum compensation threshold for meeting the exemption in any earlier pay period.  California employers who classify their commission sales employees as exempt should immediately take action to ensure compliance with the law.

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Hirst’s Bombay Mix-up

There was an interesting article in The Telegraph last week about a work called Bombay Mix, by Damien Hirst, and the dispute between his certification company, Science Ltd, and a Mr and Mrs Simpson who possess the work.

According to the article, in 1988, Hirst was commissioned to paint Bombay Mix, an early spot painting, on some wallpaper in a house owned by Mr and Mrs Ritblat.  Science claims that, before the house was sold, it was agreed with the Ritblats that in return for the painting being destroyed they would be given an alternative portable painting.  The wall painting was not destroyed and was still on the wall when the house was bought by the Simpsons in 2005.  In 2007, the Simpsons employed specialists to have the painting removed from the wall and mounted on backing board.  The Simpsons now want to sell it.
In the circumstances, Science has refused to issue a certificate of authentication, has claimed ownership and demanded the painting’s return for destruction.
This case raises several issues but, before commenting, I must make two assumptions: that the facts in the article are correct and there are no other relevant facts.  As a lawyer who has had cases reported in the press, I know just how big those assumptions are.
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California Meal and Rest Break Laws Ensnare Trucking Industry

As if traffic in California was not bad enough by itself, employers in the trucking industry have one more thing to worry about – whether they are complying with California’s meal and rest break laws.  In  Dilts v. Penske Logistics, LLC, the plaintiffs represent a class of delivery drivers and installers.  Defendants had hoped to avoid the claim that they had violated California’s meal and rest break laws by arguing that as “motor carriers” the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) preempts California’s meal and rest break laws.  The trial court agreed and granted the defendants’ motion for summary judgment.  However,  the Ninth Circuit reversed finding that California’s meal and rest break laws are not the type of laws related to prices, routes, or services that Congress intended to preempt.

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Stock option plans – What does the employer owe when terminating a key executive?

Stock option plans are a familiar and valued part of the remuneration package of senior executives. When carefully drafted, they incentivize key employees to identify personally with the Company’s success and development, and maintain loyalty and discourage turnover. The Quebec Court of Appeal, in IBM Canada Ltée c. D.C., a decision released on July 7, 2014, has clarified the circumstances when they are (and are not) to be taken account of in calculating what is owed to the departing executive terminated without cause.

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Benefits Litigation Update: Hobby Lobby, Amara, Tibble, and More

Epstein Becker Green and The ERISA Industry Committee (ERIC) have released a new issue of the Benefits Litigation Update.

Featured articles include:

Recent Supreme Court Decisions Revise Rules for Stock Drop Cases
By: Debra Davis, The ERISA Industry Committee

Hobby Lobby and the Questions Left Unanswered
By: John Houston Pope

Post-Amara Landscape Continues to Evolve
By: Scott J. Macey, The ERISA Industry Committee

Supreme Court to Decide Whether A Failed Class Action May Extend
Deadline to Bring Follow-on Claims By Individual Plaintiffs
By: John Houston Pope and Debra Davis

Supreme Court Indicates That It Will Review “Tibble
By: Kenneth J. Kelly

Challenges Could Threaten Individual Subsidies and Employer
Mandate Penalties in States with Federal Exchanges
By: Adam C. Solander

Read more about the Update here or download the full issue in PDF format.

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