Legal Updates

Life Sciences Update

Intellectual Property Laws Amendment (Raising the Bar) Bill 

By Alexia Marinos of Gadens Lawyers, Sydney

On 22 June 2011, a Notice of Motion was given by the Minister for Innovation, Industry, Science and Research , Senator Carr to introduce the Intellectual Property Laws Amendment (Raising the Bar) Bill (Bill) into the Senate.  read more


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Corporate Update

Supplies of goods and services – replacement of laws on implied conditions and warranties

By Iris Dielmann of Gadens Lawyers, Sydney

Do you use standard terms and conditions of supply or purchase orders in your business?  If you are a supplier who supplies:

  • goods or service to a person (including a corporation) if the amount paid or payable for the goods or services is $40,000 or less (irrespective of the nature of goods or services)
  • goods or services to a person (including a corporation) if the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption (irrespective of price)
  • a vehicle to a person (including a corporation) for use in the transport of goods on public roads (irrespective of price)


New laws on consumer guarantees may affect you.  read more


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Emerging Investment Opportunities in India: The Multi-Brand Retail Segment

A consensus has emerged in the government to permit foreign direct investment (FDI) in multi-brand retailing.

The Ministries of agriculture and food processing and the Planning Commission have suggested FDI up to 100 per cent in this sector, where other ministries have suggested smaller caps and sought more suggestions from industry.

The inter-ministerial group of inflation headed by Kaushik Basu, who is the chief economic advisor in the finance ministry, has recommended that FDI in multi-brand retail should be permitted, as it could be one of the key steps to help reduce rising prices and cut the margin between farms and retail prices.

To read the full article, please click here.

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Protective agreements: don’t let the courts define things for you

Many companies require employees to sign restrictive or protective covenants as a condition of employment. Some of these agreements impose confidentiality obligations on employees, while others impose post-employment obligations, including non-competition, non-soli- citation of clients and employees, and non-servicing of clients. These agreements provide peace of mind to companies so they can permit staffers to have unfettered access to confidential information without fearing that it will be used by departing employees for the benefit of a future employer.

To see the full article, click here.

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The Times They Are A-Changin’: The Obama NLRB issues proposed new rules to revamp the union election process

In the face of the failure of the Employee Free Choice Act, the Liebman-led NLRB has taken it upon itself to overhaul the union election process.  According to the NLRB, the changes will “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representations,” despite the fact that in FY 2010, the median timeframe for conducting initial elections was 38 days and 95% of all elections were conducted within 56 days.  As Member Hayes said in his dissent, “In truth, the ‘problem’ which my colleagues seek to address through these rule revisions is not that the representation process takes too long.  It is that unions are not winning more elections.”

The proposed changes to the current election process include:

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The Death of Employer Free Speech: Labor relations and the proposed rules by the DOL and the NLRB

In a one-two punch, the DOL and the NLRB issued notices of proposed rulemaking that together seek not only to hamstring employers in communicating with employees during a union organizing effort, but also to hamstring employers in communicating with employees about unions at all. These efforts are little more than a thinly veiled attempt to circumvent Congress and salvage the Obama administration’s support from organized labor – particularly following the Employee Free Choice Act debacle. Indeed, perhaps the “transparency” repeatedly espoused in the notices would be a little more credible if the agencies just came clean and admitted their role as political pawns.

The net effect of the proposed regulations is to expedite union elections, thereby providing a further advantage to organized labor (which is already winning over 50% of elections), and to effectively kill what an employer can actually do in the truncated time they would have. With a current median election time of 38 days from the date of petition (with 95% of elections occurring within 56 days), the NLRB’s proposed rules realistically seek to reduce that time period to not much more than 20 days. The purpose of the quickie election, of course, is to allow the union to propagandize its target audience, file a petition and hold the election immediately – before employees can be educated on the fact that there is a view other than the union’s.

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New York Court Enforces 60-Day Notice Provision After Original 60-Day Period Already Elapsed

In a recent decision in the matter Alliance Bernstein, L.P. v. William Clements, the Supreme Court of the State of New York, New York County (Justice Louis B. York), enjoined a former employee of AllianceBernstein, L.P. (“AllianceBernstein”) from working for a competitor for 60 days, pursuant to a provision in an agreement requiring the individual to provide 60 days notice of his intention to resign. Although the original 60 days extending from the date of his resignation had already elapsed, the Court in effect granted a new 60 day period of non-competition, because the individual had started working for the competitor immediately upon his resignation from AllianceBernstein.

The facts as set forth in the decision were that the defendant individual, a California resident, had no experience in the securities industry when first hired, but AllianceBernstein gave him extensive training and paid for his registration with various securities exchanges. He then became a successful financial advisor. In 2009, AllianceBernstein and the defendant entered into an extensive incentive plan, in which defendant promised (a) to give 60 days notice of his resignation, (b) not to solicit clients or employees of AllianceBernstein during those 60 days, and (c) to keep permanently the confidentiality of AllianceBernstein’s trade secrets and confidential information.

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"You want what? What to do when faced with a bankruptcy preference demand," Jeffrey Grasl Interviewed by Smart Business Magazine

You want what?
What to do when faced with a bankruptcy preference demand

Jeffrey Grasl Interviewed by Smart Business Magazine

Whether your company is large or small, sooner or later you will experience the pain and apprehension that come from receiving notice that one of your customers has filed bankruptcy. The first thing that many companies do after receiving notice is run to the accounts receivable ledger to see how much money just became uncollectible. However, that may not be the end of the pain, says Jeffrey S. Grasl, member, McDonald Hopkins PLC. “Many companies don’t realize that the real knife in the gut may come 18 to 24 months later when they receive a letter demanding that they pay back some of the money the bankrupt company previously paid to them,” says Grasl. “In bankruptcy parlance, this is referred to as a ‘preference.’” Smart Business spoke with Grasl about what to do when faced with a bankruptcy preference demand.

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The Future of Employment Arbitration Agreements – The Legacy of AT&T Mobility LLC v. Concepcion

By:  Betsy Johnson and Evan J. Spelfogel

Employment litigation is growing at a rate far greater than litigation in general. Twenty-five times more employment discrimination cases were filed last year than in 1970, an increase almost 100 percent greater than all other types of civil litigation combined. Case backlogs at the U.S. Equal Employment Opportunity Commission (“EEOC”) and in state and federal courts and administrative agencies nationwide number in the hundreds of thousands. Class and collective wage and overtime cases are inundating the courts. These types of cases now even outnumber discrimination cases. Most of the employment-related cases pending in the courts involve jury trials with lengthy delays and unpredictable results.

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OPM RFI Regarding Multi-State/National Insurance Plans

by Lynn Shapiro Snyder, Shawn M. GilmanAdam C. Solander, and Constance A. Wilkinson

On June 16, 2011, the Office of Personnel Management (“OPM”) released the Request for Information (“RFI”) regarding Section 1334 of the Affordable Care Act, which requires OPM to contract with health insurers to offer multi-state qualified health plans (“MSQHPs”). The purpose of the RFI is to provide OPM with information that will allow it to better understand the “interests and capabilities” of health insurance issuers that will offer MSQHPs through Health Insurance Exchanges. This alert summarizes the substantive information requested by OPM in the RFI.  Additionally, this alert provides the statutory context in which OPM is operating pursuant to Section 1334 of the Affordable Care Act.

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