Monthly Archives: September 2015

ILN Today Post

Three important lessons from the Ashley Madison data breach

Many have heard about the recent public disclosure of private information on more than 30 million individuals worldwide collected by the Ashley Madison adult networking website – whose provocative slogan is “Life is Short. Have an Affair.” The disclosed information comprises registered names, email addresses, racy photographs, personal questionnaire responses on sexual topics, website transaction details, and partial (last four digits) credit card numbers.

The massive disclosure of this embarrassingly personal information offers three important lessons that extend beyond the specific facts of the Ashley Madison matter.

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ILN Today Post

For employers, time to review drug-testing policies

Medicinal use of marijuana has been decriminalized throughout New England. The first Massachusetts medical marijuana dispensary opened its doors on June 24. It is now clear that medical marijuana is quickly becoming an everyday aspect of health care delivery in New England and throughout the country.

But legalization of medical marijuana has created a great deal of confusion for employers. Taking into account the complexities of state and federal drug, drug-testing, privacy and disability laws, what is the best course for employers so that they can make smart real-time decisions and stay out of trouble?

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ILN Today Post

Medical marijuana patient sues company over firing for drug use

BOSTON – When Cristina Barbuto of Brewster took a job with a marketing firm, she told the company that she used medical marijuana to treat symptoms of Crohn’s disease.

Barbuto says she worked for only one day for Advantage Sales and Marketing, promoting products in a supermarket, and then the company fired her. The reason they gave was that Barbuto failed a required drug test by testing positive for marijuana.

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ILN Today Post

Approval of National Offshore Wind Energy Policy

The Government of India has approved the National Offshore Wind Energy Policy, a draft of which was earlier released in 2013, to enable optimum exploitation of offshore wind energy in the best interest of the country. Taking a cue from the large number of offshore wind farms in Europe, the Government of India has identified the coastlines of Karnataka, Kerala and Goa as having reasonable offshore wind potential. Preliminary wind resource data gathered from the coastlines of Rameshwaram and Kanyakumari in Tamil Nadu and Gujarat coast also show a potential of about 1 GW.

In terms of the said Policy, the maritime zones in which offshore wind farms can be built are (a) Indian territorial waters, which generally extend up to 12 nautical miles (nm) from the coast baseline; and (b) beyond the 12 nm limit and up to 200 nm (exclusive economic zone (EEZ)), where, under international law, India has the right to construct structures such as wind farm installations – though this may be reserved for research and development activities.

The said Policy also provides for certain fiscal incentives such as a tax holiday for first 10 years of offshore wind power generation, concession in customs duty and exemption in excise duty for procurement of technology and equipment. Exemption from service tax may also be available for services such as resource assessment, environmental impact assessment, oceanographic study by third parties and use of survey vessels and installation vessels.

The Ministry of New & Renewable Energy (MNRE) has been authorized as the Nodal Ministry for use of offshore areas within the EEZ of the country and the National Institute of Wind Energy (NIWE) has been authorized as the Nodal Agency for development of offshore wind energy in the country and to carry out allocation of offshore wind energy blocks, coordination and allied functions with related ministries and agencies. It is expected that the offer of wind energy blocks will be made through an open International Competitive Bidding (ICB) process.

India has already achieved significant success in onshore wind power development, with over 23 GW of wind energy capacity already installed and generating power. The Policy will be applicable throughout India depending on offshore wind potential availability.

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ILN Today Post

Review of Existing Foreign Direct Investment Policy on Partly Paid Shares and Warrants

It has now been decided to allow partly paid shares and warrants as eligible capital instruments for purposes of FDI. The review of the policy to include warrants and partly-paid shares has been under consideration of the Government for some time now. Prior to this relaxation, warrants and partly paid shares could only be issued to foreign investors only after approval through the Government route, that is, the Foreign Investment Promotion Board (“FIPB”). The definition of “Capital” in the Consolidated FDI Policy Circular of 2015 has accordingly been amended with effect from May 12, 2015 by Press Note NO. 9 (2015) Series. Partly paid shares and warrants may now be issued to foreign investors in terms of the Companies Act, 2013, without the prior approval of the Government, however, subject to terms and conditions as may be stipulated by the Reserve Bank of India from time to time.

In terms of current Reserve Bank of India regulations, prior approval of the FIPB is required where the Indian company’s activity/sector falls the approval route. Otherwise for Indian companies whose activities/sectors are under the automatic route, issue of partly paid shares and warrants do not require any prior regulatory approval. However, pricing of the partly paid equity shares/warrants (and the price/conversion formula for the warrants) has to be determined upfront and 25% of the total consideration amount (including share premium, if any), has to be received upfront. The balance consideration towards fully paid equity shares has to be received within a period of 12 months (18 months in the case of warrants) except where the issue size exceeds Rs. 5 billion and complies with certain conditions.

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ILN Today Post

The ChAFTA enabling Customs Bills are introduced

Background

As many of you would be aware, the China – Australia Free Trade Agreement (ChAFTA) is currently under significant scrutiny both within and without the Federal Parliament.

The scrutiny has been on the terms of the ChAFTA itself including Inquiries by the Joint Standing Committee on Treaties (JSCOT) and the Senate Foreign Affairs Defence and Trade Committee (FADT).  I have been involved in the drafting of submissions to both Inquiries for the Export Council of Australia (ECA) and recently appeared before a Hearing of JSCOT.  I look forward to the Report of JSCOT and that of the FADT which should follow a month later.

However, as many would also be aware, the ChAFTA itself does not need the approval of Parliament as its creation and ratification are matters for the Executive branch of Government.  The JSCOT process is a review of the ChAFTA and the associated National Interest Analysis and the Government could, if it so chose ignore its Report and recommendations.

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Losing the plot over CGT principal residence relief

In the UK, we take for granted that if we sell our main home, we don’t have to pay Capital Gains Tax (CGT).  Yet, selling a home is still a disposal for CGT purposes.  The main thing that prevents a CGT bill from being triggered by a sale of the home is CGT principal residence relief (PRR).  As it can prove to be such a valuable relief, it’s worth any homeowner getting to grips with PRR.  Otherwise, if your home comes with a bit of land for example, you could end up with an unwelcome CGT bill if you decide to sell up.  That was the fate of Mr and Mrs Fountain, in the recent case of Fountain v HMRC ([2015] UKFTT 0419 (TC)). 
It’s easy to be lulled into a false sense of security when it comes to selling gardens because the CGT PRR legislation makes specific provision for them.  Section 222(1) TCGA 1992 says that, if there is a disposal of an interest in a dwelling house which has been an only or main residence at some point during the period of ownership, the land which is held by the owner ‘for his own occupation and enjoyment with that residence as its garden or grounds up to the permitted area’ can be exempt from CGT too, if its disposal would give rise to CGT also. 
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BNA Webinar: Opportunities and Obstacles: Accountable Care Organizations and Other Provider Risk Sharing Arrangements — a Legal and Regulatory Overview

Epstein Becker Green’s Lynn Shapiro Snyder, Senior Member of the Firm, and Tanya Vanderbilt Cramer, Of Counsel, will present “Accountable Care Organizations and Other Provider Risk Sharing Arrangements — a Legal and Regulatory Overview,” a webinar hosted by Bloomberg BNA.

While the federal government has encouraged the growth of accountable care organizations (ACOs) through the Affordable Care Act, the regulation of ACOs and other provider risk sharing arrangements remains a patchwork of federal and state requirements that span many different areas of law. This webinar will explore some of the regulatory issues faced by ACOs, integrated delivery systems, and other provider organizations that assume some or all of the financial risk for providing covered health care benefits to patients through reimbursement arrangements such as capitation or shared savings. 

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Multistate Tax Update — September 17, 2015

On Sept. 3, 2015, South Carolina’s Department of Revenue (SCDOR) issued Revenue Procedure #15-3, which is intended to assist taxpayers requesting an economic development-based alternative allocation or apportionment method. 

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Eleventh Circuit Joins Second Circuit in Rejecting DOL Position on Unpaid Interns

On September 11, 2015 the U.S. Court of Appeals for the Eleventh Circuit announced that it joined the Second Circuit in rejecting the U.S. Department of Labor’s (“DOL”) rigid six part test for determining whether unpaid interns were employees and should have been paid minimum wages and overtime for their services. Schumann and Abraham et al v Collier Anesthesia, P.A., Wolford College, LLC, Thomas Cook and Lynda Waterhouse, No. 14-13169, 2015 BL 294459 (11th Cir. Sept. 11, 2015), citing to Glatt v. Fox Searchlight Pictures, Inc., Nos. 13-4478-cv, 13-4481-cv (2d Cir. July 2, 2015) 

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