Monthly Archives: December 2016

Key Trade Secret and Non-Compete Developments in 2016 – Employment Law This Week

The year-end episode of Employment Law This Week  looks back at the biggest employment, workforce, and management issues in 2016.

Our colleague Jonathan Shapiro discusses the impact of the Defend Trade Secrets Act (DTSA)—which opened federal courts to trade secrets claims, regardless of the dollar value—and the White House’s call to action encouraging states to ban non-compete agreements in some circumstances.

Watch the segment below and read Epstein Becker Green’s recent Take 5 newsletter, “Top Five Employment, Labor & Workforce Management Issues of 2016.”

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7 Ways Lawyers Can Build More Engagement Over the Holidays

wjqedasn_ni-jeffrey-wegrzynHas everyone got their “fa la la” on yet?

While the holidays are often a mad rush for all of us, it seems that this year especially, everyone is behind with wrapping up their end of the year duties (and wrapping up their gifts), while we try to figure out shortcuts for how to manage to get everything done before family and friends descend on us (or you head out the door yourself). In among all of the holiday madness are your professional pressures, which, of course, take priority.

So rather than a thought-provoking, meaty post today, let’s look at some (mostly) quick ways that you can engage with your clients and other relationships – these can be done over the holidays, if you find you have some down time and you want to get a jump on 2017, or they can be things that you pencil into your schedule for next year. While the options for engagement are endless, and many of them are really in-depth, today, we’re going to focus on some of the simple ideas that can add a little boost to your relationships.

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    ILN Today Post

    HOWARD & HOWARD Welcomes Joseph B. Vanfleet

    Royal Oak, Michigan, December 20, 2016: Howard & Howard Attorneys PLLC is pleased to announce that Joseph B. VanFleet has joined the firm. He will practice out of the firm’s Peoria, Illinois office.

    Mr. VanFleet concentrates his practice on business, commercial, real estate, and construction litigation; with a heavier emphasis on banking, creditors’ rights, and general business law.
    After several years at one of the world’s largest law firms, Mr. VanFleet left the relative stability of an international firm to form his own practice where he focused on providing sophisticated cost-effective legal representation for his broad spectrum of banks and corporate clients in a manner custom-designed to achieve the desired result for each specific matter. His clients range from small businesses and community banks to Fortune 500 publicly traded entities and large-scale lenders. He brings an innovative, practical, and solution-based approach to Howard & Howard.
    Mr. VanFleet received his J.D. from the University of Illinois College of Law in 1990 and his B.S. from the University of Illinois College of Commerce and Business Administration in 1987. He is licensed in the State of Illinois. He is also admitted to practice before the United States and Illinois State Supreme Courts, the United States Court of Appeals for the Seventh Circuit, and the United States District Courts for the Northern and Central Districts of Illinois.

    Founded in 1869, Howard & Howard is a full-service law firm with a national and international practice that provides legal services to businesses and business owners. The firm has offices in Michigan (Ann Arbor and Royal Oak); Illinois (Chicago and Peoria); Las Vegas, Nevada; and Los Angeles, California.  Howard & Howard’s major areas of practice include: bankruptcy and creditors’ rights; business and corporate; commercial litigation; employee benefits; environmental; estate planning; franchising; intellectual property; labor, employment and immigration; mergers and acquisitions; real estate; securities; and tax. Our distinguished backgrounds provide us with a solid understanding of the industries we serve, including, automotive and industrial; commodity futures; construction; energy and utilities; financial services; gaming; healthcare; and hospitality. For more information, please visit the firm’s website at www.howardandhoward.com.

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    Section 151Z liability – not limited to common law

    On 15 March 2016, District Court Judge Elkaim in the State of New South Wales v Wenham [2016] NSWDC 25 found that a party who seeks to rely on the indemnity provisions under section 151Z of the Workers Compensation Act 1987 (NSW) (section 151Z) cannot rely upon the blameless accident provisions1.

    His Honour succinctly summarised his views at [23] of his Judgment in this matter as follows:

    The cause of action relied upon by the plaintiff is provided by section 151Z. That cause of action required there to be a wrongdoer. The deeming provision concerning fault in section 7B of the MACA2 is a deeming provision only for the purposes of a claim for damages. It is there to assist the victim of a blameless accident. It does not extend, absent specific reference, to the cause of action provided by section 151Z.

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    Hall & Wilcox adds to Sydney insurance team with two appointments

    Leading independent law firm, Hall & Wilcox, has further bolstered one of its strongest practice areas by appointing a new partner and senior associate to its Sydney insurance team.

    David Short, partner, was previously Sydney litigation group practice head with Meridian Lawyers. Prior to this, David was a partner at Ebsworth and Ebsworth (as it then was) and has previously worked as a senior claims specialist and general counsel at Chubb Insurance.

    David’s career brings with him significant experience in many areas of insurance. This experience covers public and product liability, life insurance, professional indemnity (health care) and disciplinary work, association liability/directors and officers liability and defamation. He has acted nationally for several insurers, ASX listed major corporate clients, allied health professionals and their member associations.

    Mitch Stein, was previously a senior associate at Barry Nilsson and Meridian Lawyers, where he specialised in insurance law and personal injury claims in the retail and health sectors.

    Rhett Slocombe, partner and national insurance practice head at Hall & Wilcox, said the appointments cap off a strong year for the firm’s insurance practice. “We’ve continued to consolidate our practice as one of Australia’s largest national insurance teams, and the strength and breadth of the team is welcomed by our clients.

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    Amendments to the Law on Leasing

    Amendments to the Law on Leasing

    December 20, 2016
    Art. 10 of the Federal Law dated 29.10.1998 No. 164-FZ “On Financial rent (Leasing)” was amended by the Federal Law dated 03.07.2016 No. 360-FZ “On Amendments to Certain Legislative Acts of the Russian Federation”. The Law on Leasing was supplemented by the duty of the lessor to provide the Unified Federal Register of information on the facts of legal entities (hereinafter – the “Register”) with information on the conclusion of the lease contract.

    This information is to include the following:

    Number and date of the lease contract;
    Commencement and expiration dates of the leasing;
    Names of the lessor and the lessee (indicating TIN and BIN);
    Property that is subject of the leasing (digital, lettering of the property, the object of rights or the combination of symbols).
    In accordance with Art. 7.1 of the Federal Law of 08.08.2001 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs” (hereinafter – “No. 129-FZ”) legal entities are obliged to maintain the Register. Pursuant to part 9 thereof information is to be submitted to the Register within three (3) business days from the date of occurrence of the legal fact by the entity which has the duty to provide such information. The exception is the information provided by the authorized federal executive authority.

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    Top Five Takeaways from MedPAC’s Meeting on Medicare Issues and Policy Developments—December 2016

    The Medicare Payment Advisory Commission (“MedPAC”) met in Washington, DC, on December 8-9, 2016. The purpose of this and other public meetings of MedPAC is for the commissioners to review the issues and challenges facing the Medicare program and then make policy recommendations to Congress. MedPAC issues these recommendations in two annual reports, one in March and another in June. MedPAC’s meetings can provide valuable insight into the state of Medicare, the direction of the program moving forward, and the content of MedPAC’s next report to Congress. At the annual December meeting MedPAC reviews draft recommendations to Congress regarding Medicare payment policy. MedPAC reviews and formalizes these recommendations during its January meeting.

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    The keys to the “care, custody and control” exclusion

    By Patrick Henry, from our Insurance Law Practice Group.

    December 19, 2016 — “Park’n Fly” services have become ubiquitous. A hotel, generally located close to an airport, provides one night’s accommodation, breakfast, car parking during the stay abroad and shuttle services to and from the airport, all for a flat fee. The service is especially popular in the wintertime, as the lure of warmer climates suddenly becomes irresistible to many.

    In 2005 and 2006, Econolodge, close to the Pierre-Elliott-Trudeau airport, was offering such a package. For $99, the customer got all four services. Of course, for winter travel, customers who purchased this package had to deposit their car keys with the hotel reception, and provide their car’s license plate number. This was meant to allow hotel staff to move the car if necessary: to allow for snow removal operations, for instance.

    In late January 2005, a vacationer who had purchased this package was quite upset when he realized that the vehicle he had left at the hotel had disappeared. He filed a claim with AXA, his insurer, and received compensation for the theft; AXA, subrogated in his rights, filed a claim against the hotel which, in turn, called its insurer, Lombard, in warranty. By a stroke of bad luck, in mid-March 2006, another suntanned customer had a similar surprise, with the same hotel. The same legal scenario was repeated albeit with Promutuel as the customer’s insurer, and a new hotel owner: but Lombard was once again the liability insurer.

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    Directors’ duty to act with care, skill and diligence in the context of the general anti-avoidance rules

    The recent Federal Court decision in BCI Finances Pty Ltd (In Liq) v Binetter (No 4) [2016] FCA 1351 (Binetter) is a timely reminder of company directors’ common law duties to act with care, skill and diligence in the discharge of their responsibilities (in addition to the statutory duties imposed under the Corporations Act 2001) – not least in the context of tax risk management.

    The Binetter decision

    The liquidators of four companies succeeded in a Federal Court action claiming that among other things, several directors of those companies breached their duty to act with care, skill and diligence as a result of certain arrangements involving offshore banking deposits, and as a result of their conduct in the context of an Australian Taxation Office (ATO) audit into the arrangements.

    The impugned arrangement comprised of ‘back to back’ arrangements involving the use of funds held by directors and associated entities (in Switzerland and Israel) as security for advances from the Israeli banks to the four companies. The advances were equivalent to the offshore deposits.

    The liabilities in the revised assessment arose as a result of the disallowance of deductions for the interest expenses claimed to be paid to the Israeli banks and the inclusion of other related amounts in the companies’ assessable income.

    The Court held that the four directors breached their duties by agreeing to participate in a scheme between the companies and the Israeli banks. The Court found that:

    • the directors intentionally concealed the existence of the offshore deposits and any income earned from the deposits
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    Week of December 12, 2016 on ILNToday – A Roundup!

    roundupSomehow, we have reached the point where there are only two weeks left in the year (which, let’s be honest, after the way 2016 has treated most of us, I think we’ll be glad to see the back of it). But with only 15 days left, it’s a good time to reflect and review, as well as plan for the next 12 months – don’t forget to build some flexibility into those plans though!

    As you’re reviewing and planning, give some thought to your content as well, and take a look at what the ILN members have provided us over the last week on ILNToday. Make sure to also check out our newly released international guide on “Buying & Selling Real Estate.”

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