Legal Updates

Keep Calm And Carry On – Don’t Panic!

“Keep Calm And Carry On” was a poster produced by the British government early on during the Second World War.  It was intended as an exercise in morale boosting for the British public.  Seventy years on, the slogan finds itself at the centre of another battle in Europe, this time before the European Community Trade Mark office in Alicante.

In 2009, an entrepreneur by the name of Mark Coop started to produce a range of goods bearing the “Keep Calm And Carry On” slogan.  Starting with t-shirts, he rapidly expanded so as to include mugs, soft furnishings, cufflinks and now even produces deck chairs and chocolate bars all bearing the same phrase.  Mr Coop had the foresight to apply to register a community trade mark in a wide variety of classes.  As a result, Mr Coop acquired the exclusive right to apply the slogan to the goods for which the community trade mark was registered, and used his registrations to prevent anyone else from using the slogan on various products.

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IRS Announces the Voluntary Classification Settlement Program

Arnstein & Lehr attorney E. Jason Tremblay

E. Jason Tremblay

On the heels of the U.S. Department of Labor’s announcement that it was going to share independent contractor misclassification information with the Internal Revenue Service (“IRS”), the IRS recently announced the implementation of the “Voluntary Classification Settlement Program” (“VCSP”). The VCSP is intended to encourage employers who have misclassified workers, for a relatively small payment to the IRS, to reclassify those workers as employees for federal employment tax purposes. In effect, this allows employers to avoid all but 10% of the past employment tax liability that the companies would have owed for prior years. The IRS will also not conduct employment tax audits of the companies for prior years with respect to the classification of the workers.

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DOL Set to Share Employee Misclassification Information with the IRS and States

Arnstein & Lehr attorney E. Jason Tremblay

E. Jason Tremblay

In what appears to be another example of cracking down on the improper use of independent contractors, the U.S. Department of Labor (“DOL”) recently announced it is entering into agreements with the IRS, as well as some state agencies (including Illinois state agencies), to share information regarding employers who have improperly classified employees. The DOL maintains that these arrangements are necessary to share information and coordinate law enforcement with the participants to end the practice of misclassifying employees. However, it is clear that this collaboration has as much to do with enhancing the inflow of tax revenues as it does with protecting employees.

What this practically means for businesses is that if the DOL determines that an independent contractor is misclassified, it can share that determination and evidence with, for example, the Illinois Department of Employment Security or other state agencies, which could very well lead to additional investigations, fines, fees and liability upon the business beyond those by IDOL. In light of this, every company with a business model based, in whole or in part, upon the use of independent contractors should prepare itself for this new enforcement activity and immediately consult with an employment attorney to perform an audit of those workers.

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Out with the old and in with the new: Gadens’ Guide to State Significant Development in NSW (the replacement of Part 3A)

By Anthony Whealy of Gadens Lawyers, Sydney

We are now only days away from the start of critical new planning laws that will govern the assessment of all major development projects in NSW (State Significant Development), following the coalition government’s repeal of Part 3A of the Environmental Planning and Assessment Act shortly after the March election. Planning Minister Brad Hazzard recently said that he has already signed the new State Environmental Planning Policy (SEPP) and that it will commence this Saturday, 1 October. read more

 

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Benefits to first home buyers purchasing a newly constructed home

By Ros Forrest and Naomi Rothman of Gadens Lawyers, Sydney

With a focus on boosting new housing construction, the NSW Government recently released its Budget for 2011-2012.  read more…

 

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Security of payment alert: termination of building and construction contracts and the subsequent limitations on security of payment rights

By Scott Laycock and Stephanie Venuti of Gadens Lawyers, Sydney

The recent Queensland Supreme Court decision of Walton Constructions (QLD) Pty Ltd v Corrosion Control Technology Pty Ltd & Ors [2011] QSC 67 (Walton) arms respondents with an additional defence to payment claims and presents a new risk to claimants in further limiting their rights to pursue payment under security of payment regimes.  read more

 

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When It Comes to Non-Compete Agreements, It’s Best to Know Exactly What Your Company Is Acquiring

Restrictive covenants such as non-compete and non-solicitation agreements are frequently used in connection with acquisitions to protect the underlying value of the transaction. After all, an acquiring company typically values the target company based in part on the revenue it generates from its stable of customers. Therefore, the acquiring company often requires the target company’s employees to execute restrictive covenants that limit their ability to “jump ship” after the acquisition closes and erode the value of the transaction by luring away customers. Recently, the United States Court of Appeals for the First Circuit issued a decision which underscores the importance of carefully examining and understanding any restrictive covenant that may be acquired through a transaction.

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ABA Opinion Limits Lawyers’ Ethical Duty To Notify Opposing Counsel Upon Receipt Of Adverse Party E-mail Communications With Counsel

By: Jill Barbarino

When defending a litigation filed by a current or former employee, it is now routine practice for the employer’s counsel to review the employee’s workplace e-mails and computer for information relevant to the employee’s claims or the employer’s defenses.  This, of course, is consistent with the principle that the employer’s e-mail and computer systems are the property of the employer and employees have no expectation of privacy with respect to electronic communications sent or received via their employer’s systems.  If, however, an employee has communicated with his counsel using his work-issued e-mail address or computer, does defense counsel have an obligation to notify opposing counsel of his or her possession of the communications?

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Certification Marks: Decision Affirmed by Court of Appeal

An earlier blog discussed a Federal Court decision, agreeing with a decision of the Registrar of Trade-marks and preventing the registration of a certification mark, HALLOUMI, in association with cheese.  In The Ministry of Commerce and Industry of the Republic of Cyprus v. International Cheese Council of Canada, the Federal Court of Appeal affirmed the decision.

The Trade-marks Act defines a certification mark as a type of trademark and sets up a specific regime for its adoption and registration by a person not engaged in the manufacture, sale, leasing or hiring of the wares or services in question, who wishes to license others to use the marks.  With wares a certification mark is intended to signify character or quality, working conditions, the class of persons producing the wares or the area they are produced.

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Whistleblower Risks – It May Be Time to Reexamine Assumptions about their Management and Insurability

Those concerned with managing or insuring risk are affected increasingly by the evolution of whistleblowing, especially as new laws and interpretations since 2009 have changed the stakes by redefining whistleblower protections and bounty award entitlements.

Virtually any risk management program written prior to the 2008 elections may need to be recalibrated to take account of new definitions introduced by whistleblower features of legislation nominally concerning healthcare and financial services, but in reality reaching much more broadly beyond the bounds of the industries ostensibly targeted. The subject matter of protected activity, the appropriate manner for an informant or tipster to communicate, the remedies for employment-related reprisals, and the opportunity to share in sanctions imposed by the government are part of laws enacted in the past two years that introduce entirely new rights and obligations or importantly amend existing ones.

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