Legal Updates

FTC PROPOSES AMENDMENTS TO “MAIL ORDER RULE” TO KEEP UP WITH TECHNOLOGY

For many years, the Federal Trade Commission (FTC) has required that sellers who solicit buyers to order merchandise through mail or telephone have a reasonable basis to expect that they can ship ordered merchandise within the time frame they advertise or, if they do not specify a time frame, within 30 days.

When a seller cannot ship within the promised time, the FTC’s Mail or Telephone Order Merchandise Rule (the Rule) also requires that the seller either obtain the buyer’s consent to the shipping delay or refund payment for the unshipped merchandise.

Click here to read the full alert >>

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IRS Announces Voluntary Classification Settlement Program

by Dean L. Silverberg, Jeffrey M. Landes, Susan Gross Sholinsky, and Jennifer A. Goldman

On September 21, 2011, the Internal Revenue Service (“IRS”) announced a new program that will give businesses the opportunity to resolve prior worker classification issues by voluntarily reclassifying their non-employee workers (such as consultants, freelancers, and independent contractors) as employees for federal employment tax purposes. Officially called the “Voluntary Classification Settlement Program” (“VCSP”), this program is part of a larger “Fresh Start” initiative at the IRS to aid taxpayers and businesses in addressing their federal tax liabilities.

Read the full advisory online

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Business Restructuring and Bankruptcy Alert: Receivership sales free and clear of liens in Cuyahoga County…

A new Court of Common Pleas decision creates uncertainty

Ohio common law decisions regarding a receiver’s ability to sell property “free and clear” of all liens appear to have more often than not supported the proposition that a receiver can sell property free and clear of liens so long as the receiver complies with procedural notice and due process requirements. However, a recent decision authored by Cuyahoga County Magistrate Stephen M. Bucha III, and adopted by Common Pleas Judge Timothy J. McGinty on June 10, 2011, in the matter of The Huntington National Bank v. Caitlin & Bridget Cunningham, LLC, Cuyahoga County Court of Common Pleas, case number CV-10-717066, seems to reach a different conclusion. In the Huntington case, the court stated that it does not have the authority to authorize a receiver to sell real property free and clear of liens without the express consent of all parties. This is a stark departure from recent judicial interpretations of a receiver’s ability to sell property free and clear of liens.

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Oral Argument On California Meal And Rest Break Case To Be Broadcast Live

By Michael Kun

It appears that oral argument before the California Supreme Court in Brinker Restaurant Corp. v. Superior Court will be broadcast live on-line on the California Channel on November 8, 2011 at 9 a.m.   While it is unlikely this will inspire families to gather around their computers as they gathered around their radios to listen to breaking news decades ago, more than a few employers with operations in California may want to listen to this oral argument on a critical issue that affects all such employers – whether employee meal and rest breaks must be “ensured” or merely made “available.”

If the California Supreme Court rules that meal and rest breaks must be “ensured,” most employers will need to implement new policies and practices the very next day.  And most will be vulnerable to the very type of wage-hour class actions that have besieged California employers for the past decade. 

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Halsbury Chambers – Inside the Chamber 4th Quarter Newsletter

With Christmas right around the corner, this means we’ve come quite some distance into the new year. For those who have not been consistent with checking in on their goals, now is a good time to review those New Year Resolutions to see what has actually been accomplished. After all, we’re already in the fourth quarter of the year!

To read the full newsletter, please click here.

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OSHA Renews Enforcement Program Targeting Hotels

By Eric J. Conn and Casey M. Cosentino

OSHA recently renewed a Local Emphasis Enforcement Program (“LEP”) that targets hotel operators in OSHA’s Region 2, which includes New York, New Jersey, Puerto Rico, and the Virgin Islands. The directive outlining OSHA’s Hotel LEP is available on OSHA’s website.

The Hotel LEP was launched in October 2010, and during the first year of the initiative, OSHA limited enforcement inspections to hotels in the Virgin Islands. According to an OSHA Region 2 official, the agency started in the Virgin Islands because of a high number of reports of workplace injuries at hotels in that area. Since the start of the LEP, OSHA has essentially inspected a different hotel property each month to month and a half. The hotel properties subject to LEP inspections have ranged from locally-owned motels to multinational hotel chains.

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Avoiding the common pitfalls when drafting an expert determination clause; The State of NSW v UXC Limited [2011] NSWSC 530

The recent case of The State of NSW v UXC Limited serves as an important reminder to parties of the importance of clarity when it comes to expert determination clauses.  read more

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Another Instance of Alleged Trade Secret Misappropriation Results in Federal Criminal Indictment

Co-authored by Viktoria Lovei.

Following up on a recent post, U.S. v. Pu presents another instance of a trade secret theft case with an international component that the federal authorities have decided to prosecute. Yihao Pu, a former quantitative financial engineer for Citadel LLC, was arrested last Wednesday for allegedly stealing proprietary information related to the Chicago-based company’s trading system as part of a plan to launch his own hedge fund in China. After filing its own civil suit against Pu on August 29, 2011 and obtaining a temporary restraining order, Citadel brought the matter to the federal authorities. In this instance, the company chose both to take rapid action on its own to protect its trade secrets as well as to refer the matter to federal law enforcement authorities. The civil case is Citadel LLC v. Yihao Ben Pu, 11CH30493, Cook County, Illinois and the federal case is U.S. v. Pu in the Northern District of Illinois.

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Vacating Chinese Daily News, The U.S. Supreme Court Signals That Wal-Mart Extends To Wage-Hour Cases

By Michael Kun, Regina Musolino and Aaron Olsen

Since the Supreme Court’s historic ruling in Wal-Mart Stores, Inc. v. Dukes, attorneys have debated the scope and impact of the decision.  Not surprisingly, plaintiffs’ counsel have argued that the decision was limited to its facts, or to discrimination cases, or to cases involving nationwide claims.  And they have argued that Wal-Mart has no application whatsoever to wage-hour class actions and collective actions.  In only a few words, the Supreme Court may have answered some of these questions.

Earlier this month, the United States Supreme Court quietly vacated a $7.7 million award in a wage-hour class action in Chinese Daily News v. Wang, remanding the case to the Ninth Circuit for further consideration in light of Wal-Mart.  While the Supreme Court did not provide any further analysis or guidance, and while the Ninth Circuit’s ultimate ruling cannot be predicted, the vacation order alone would seem to undermine a few of the arguments that many plaintiffs’ counsel have been making since Wal-Mart was decided – particularly that Wal-Mart was limited to its facts and has no application to wage-hour matters.  Simply, if the Supreme Court believed Wal-Mart was not applicable to wage-hour claims, there would have been no reason to vacate Chinese Daily News

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Tax credits for fuel and transport emissions: The sting in the carbon price tail

The ‘500 polluters’ tagline has proved popular amongst the commentariat for explaining the reduced coverage of the Gillard Government’s  carbon price mechanism, however, this is only part of the story.  read more…

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