Legal Updates

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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Contracting for a Carbon price: Are you subsidising your competitors?

The federal parliament is one (very significant) step closer to implementing the Carbon Price Mechanism (CPM) and their Clean Energy Future Plan of the Multi-Party Climate Committee.
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Clean Energy Bill 2011: The carbon price has landed

The House of Representatives last week passed the Clean Energy Bill 2011 along with 17 other bills which together make up the legislative framework for the Clean Energy Future Plan.
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Vioxx appeal successful

On 12 October 2011 the Full Court of the Federal Court of Australia, constituted by Chief Justice Keane and Justices Bennett and Gordon JJ (their Honours) allowed an appeal of the Federal Court decision to award compensation to a claimant who claimed consumption of Vioxx caused him to have a heart attack in 2003.  read more

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Guidelines by SC to Minimize Landlord – Tenant Disputes

SC has recently laid down the following illustrative guidelines and norms for model lease arrangements as a fair measure to reduce litigation between the landlords and the tenants:

(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.

(ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.

(iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord.

(iv) The major repairs shall be carried out only after obtaining permission from the landlord in writing. The modalities with regard to adjustment of the amount spent thereon should be worked out between the parties.

(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises.

(vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the subject.

(vii) The rent so fixed should be just, proper and adequate as per the location, type of construction, accessibility with the main road, parking space facilities available therein etc.

The impact of the judgment remains to be seen in cases where either the long term lease agreements do not specify the above aspects, or where they record an understanding of the parties contrary to the above guidelines. It would be interesting to see how the various courts of India apply this precedence to the eviction related cases being adjudicated by them.

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Restriction of Sale of Property on Power of Attorney

The Supreme Court of India (“SC”) in a landmark judgment delivered on Wednesday, October 12, 2011, held that the General Power of Attorney (“GPA”) method for sale of immovable property is not a valid form of transfer of property. SC opined that (i) a Power of Attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property; and (ii) property can be lawfully transferred only by way of registered sale deeds.

Reportedly, SC has held that there shall be no mutation of property in revenue and civil records on the basis of Power of Attorney. It is believed that sale of property through GPA result in investment of unaccounted money in real estate business. Property transactions through GPA were evolved, inter alia, to avoid (i) payments of stamp duty and registration charges on sale/conveyance deeds; and (ii) payment of capital gain tax on transfer of capital asset.

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ATO releases new tax ruling for charities

On 12 October 2011, the ATO released a new tax ruling TR 2011/4 setting out its views on the meaning of ‘charitable’ in the context of determining whether the purpose of an organisation is charitable, including the features distinguishing a charitable institution and a charitable fund, and the circumstances in which an institution or fund will be considered charitable.
This is important to existing charities as it brings alignment between the tax ruling and current operations. read more…

 

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Special Immigration Alert: USCIS Changes I-797 Notice Procedures

On September 12, 2011, the U.S. Citizenship and Immigration Services (“USCIS”) suddenly announced that it would start sending the original I-797 receipt and approval notices for all immigrant and nonimmigrant petitions and applications directly to applicants and petitioners. If a Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative) is submitted, the USCIS will now send the courtesy copy of these I-797 notices to an attorney or accredited representative. Prior to this announcement, the USCIS had sent the original I-797 notices to the attorney or accredited representative and the courtesy copy to the applicant or petitioner identified in the application or petition.

The USCIS’s sudden policy reversal came without any advance warning and may require sponsoring employers, especially large organizations, to implement policies and procedures quickly to ensure that these notices can be identified in the mail and routed to the proper person in their organizations. Employers also must be more careful in choosing who will be identified as the organizational representative in the application or petition and must make sure that he or she understands what these notices are and how they should be handled.

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Introduction of .xxx websites – protecting your brand

This year sees the introduction of “adult” website domain names, with a “.xxx” suffix (or TLD) (as opposed to the usual .com, .co.uk etc.).

This new TLD is designed for the adult industry, but trademark owners that are not in the adult industry can apply to block the registration of .xxx domain names that correspond to their registered trademarks during a “sunrise period” that ends on 28 October 2011.  Blocked domain names will point to a standard informational page indicating that the domain name is unavailable for registration.

Brand owners will want to ensure that their brand is not “hijacked” by adult content providers, so we can expect immediate applications to block names such as “apple.xxx”, “pepsi.xxx” and “hilton.xxx”.  Any brand which trades on its reputation would be well advised to consider registering a blocking application.

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