Monthly Archives: February 2017

ILN Today Post

NAD Action Requiring the Kardashians and Fit Tea to Disclose Their Connections in Social Media Posts

As part of its ongoing monitoring program, the National Advertising Division (NAD) reviewed endorsements by Kourtney and Khloe Kardashian and Kylie Jenner (the Kardashians) that failed to disclose that they were paid to endorse a dietary supplement known as “Fit Tea” in their social media posts. In response to the NAD’s action, Fit Tea revised its social media posts to disclose Fit Tea’s material connections with its celebrity endorsers.

The Federal Trade Commission (FTC) Endorsement and Testimonial Guides (FTC Endorsement Guides) require clear disclosure of any material connections between an advertiser and its influencers and other endorsers, including when their endorsements are posted on social media platforms such as Twitter and Instagram. The FTC contends that, in the absence of such disclosure, consumers might believe that an endorsement on social media is a spontaneous recommendation of a product made without any compensation rather than a paid endorsement.

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Week of February 13, 2017 on ILNToday – A Roundup!

roundup“Busy” is an understatement for this week and from speaking with some of our lawyers, I’m sure they would heartily agree! So let’s get on with the roundup!

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Labor Department Backs Away From Permitting Unions At OSHA Safety Inspections

As we reported last week, the U.S. District Court refused to dismiss a challenge to OSHA’s controversial 2013 Fairfax Memorandum, which allowed for the participation of union representatives in OSHA safety inspections at workplaces where the union did not represent the workers. We asked at the time whether the Trump Administration would continue to defend that change in policy. This week, we saw the first concrete evidence suggesting that OSHA is at least reconsidering and may at a minimum drop its defense of the practice.

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Court Refuses To Dismiss Challenge To OSHA Practice Allowing Unions To Accompany OSHA Workplace Investigations

A United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility and access to employees in connection with organizing campaigns.

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New mandatory data breach notification legislation

The long awaited Privacy Amendment (Notifiable Data Breaches) Bill 2016 (Bill) was passed in the Australian Parliament on 13 February 2017. The Bill amends the Privacy Act 1988 (Privacy Act) to introduce a mandatory data breach notification regime (notification regime). The notification regime is a significant change to the data breach notification obligations of organisations holding personal information.

The Bill is likely to commence 12 months after it receives Royal Assent (which is expected to occur shortly).

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Talking Tax – Issue 65


Next stage for Diverted Profits Tax

In the next stage of implementing the Diverted Profits Tax (DPT) for large multinational corporations, the Diverted Profits Tax Bill 2017 and the Treasury Laws Amendment (Combating Multinational Tax Avoidance) Bill 2017 (Bills), have been introduced into Parliament.

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Ecuadorean Villagers Continue Legal Battle Against Chevron

Yaiguaje v. Chevron Corporation 2017 ONSC 135 (CanLII)

The saga continues.  This case returned to the Ontario Superior Court of Justice for consideration after a hearing at the Supreme Court of Canada.  Forty-seven individual plaintiffs in this action, representing approximately 30,000 indigenous Ecuadorian villagers, are suing Chevron and Chevron Canada to attempt to enforce a  US$9.5 billion judgment.  The enforcement proceedings first came before the Ontario Court where a motions judge – Justice D.M. Brown (now on the Ontario Court of Appeal) – held that the Ontario Court had jurisdiction to recognize and enforce the Ecuadorian judgment but on his own motion stayed the proceedings.  The Ontario Court of Appeal over-ruled Justice Brown’s imposition of a discretionary stay but upheld his decision on the jurisdictional issue.  The Supreme Court of Canada upheld the decision of the Court of Appeal. 

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Employers: How to Handle F17, Mass Strikes, and Political Activity in the Workplace

Our colleagues Jeremy M. Brown, Steven M. Swirsky and Laura C. Monaco, at Epstein Becker Green, have a post on the Management Memo blog that will be of interest to many of our readers in the retail industry: “F17 and the General Strike Movement – Best Practices for Addressing Political Activity in the Workplace.”

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Rainmaking Recommendation from Jaimie Field: Get Social or Else!

In the latest edition of “are we still really talking about this?” Jaimie Field brings you a recommendation on why, as lawyers, you should be paying attention to and using social media. I will add this caveat – social media, like any marketing tool, needs to be used when and if it aligns with your marketing goals. But at the very minimum, you should understand what the tools are and how they work, because they may benefit you from a research perspective, because your clients use them and you may need to advise them, or because they fit into your own strategy for business development, relationship engagement, reputation enhancement, etc.

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Prince v. Sears: A Reminder About the Benefits of Complete Preemption

In Prince v. Sears Holding Corp., the United States Court of Appeals for the Fourth Circuit (the “Fourth Circuit” or the “court”) sets forth a test that should assist sponsors of employee benefit plans covered by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) in identifying when participants’ state law claims may be removed to the federal courts.  The Fourth Circuit offers a clear explanation of complete preemption under Section 502(a) of ERISA and the test to determine if Section 502(a) completely preempts a state law claim.

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