ILN Today Post

Russian Law Review

Russian Law Review

* March 2011 – June 2011

For the full review, please click here.

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Life Sciences Update

‘Talk the talk, walk the walk’: warranty requirements under Australian Consumer Law

By Jessica Kinny and Wendy Blacker of Gadens Lawyers, Sydney

On 16 November 2010 the final Australian Consumer Law (ACL) regulations were published.  One of the key provisions of the ACL is section 54, which is a statutory guarantee of acceptable quality of a good or service enforceable against the suppliers and manufacturers of that good or service.  read more

 

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Data Privacy and Network Security Alert: Attorneys General continue to increase legal standards for data privacy compliance

Many have written about it and several have contemplated it — whether states will adopt private data security standards, such as the Payment Card Industry Data Security Standards (PCI DSS), and use them as legal standards that owners and holders of personal information (PI) must comply with. That’s exactly what the Massachusetts Attorney General did when it recently filed suit against Briar Group, LLC and alleged, among several other things, that Briar was not PCI compliant at the time of its data breach in November 2009, affecting 53,000 MasterCard and 72,000 Visa accounts.

PCI DSS are private data security standards created by the Payment Card Industry Security Standards Council that apply to all organizations collecting credit cards. The Complaint alleged that Briar’s failure to implement basic data security measures on its computer system allowed hackers to gain access to Briar’s customers’ credit and debit card information. 

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Data Privacy and Network Security Alert: A flurry of federal data security and data breach notification bills introduced into Congress

Recent high profile data breaches and increased attention to the protection of consumers’ personal information has intensified the momentum towards enactment of a federal data security and data breach notification law. Currently 46 states and the District of Columbia have enacted data breach notifications with drastically different requirements and policies. Within the last few months, Congress has been inundated with national data security bills outlining an organization’s obligations when it suffers a data breach. Unfortunately, the proposed federal bills would, in many instances, further complicate an entity’s obligations upon a breach.

Among the numerous federal data security bills introduced, the following four are most recent and significant:

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Data Privacy and Network Security Alert: And then there were four

Mississippi has joined the majority of other states and now has a law that governs an organization’s obligations should it suffer a data breach relative to Personal Information (PI) of a Mississippi resident. Only four states in the United States have not passed similar legislation – Alabama, Kentucky, New Mexico and South Dakota.

Similar to many other state data breach notification laws, the obligation falls on any organization which owns, licenses or maintains PI of any resident of Mississippi.  Like others, Mississippi defines PI as an individual’s first name or first initial and last name along with Social Security number, driver’s license number or financial account number or credit card number (along with the required security or access code).

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Data Privacy and Network Security Alert: Massachusetts Attorney General says you must practice what you preach

In the first public settlement of its kind related to violations of the new Massachusetts Standards for the Protection of Personal Information of Residents of the Commonwealth, 201 C.M.R. 17.00, Belmont Savings Bank has entered into a settlement with the Massachusetts Attorney General following a data breach in which an unencrypted backup tape containing the names, Social Security numbers, and account numbers of more than 13,000 Massachusetts residents was lost after a Belmont employee failed to follow the bank’s own Written Information Security Program (“WISP”).

In May 2011, a Belmont employee left an unencrypted backup tape on a desk rather than storing it in a vault for the night, which was then inadvertently thrown away by the evening cleaning crew. Although Belmont had a WISP, which met the new Massachusetts data security standards, Belmont failed to comply with the WISP in practice. Specifically, Belmont failed to encrypt portable devices, such as the backup tape, which contained personal information.

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Corporate Risk & Insurance Update

Is there nobody to share HIH’s burden?

The final(?) chapter in the HIH Claims Support saga – HIH Claims Support v Insurance Australia Ltd [2011] HCA 31

By Ryan Lynch and Ray Giblett of Gadens Lawyers, Sydney

  • The High Court has delivered the final blow to HIH Claims Support’s long running contribution claim
  • ·           In rejecting the claim, the High Court confirmed the orthodox approach that the parties must share a ‘common burden’ read more

 

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Energy & Resources Update

ATO calls for submissions on new treatment of transfer farm-out arrangements

By Cameron Steele of Gadens Lawyers, Sydney

A draft tax ruling issued on Wednesday, 24 August 2011 signals a new approach by the Australian Taxation Office (ATO) for the tax treatment of deferred transfer farm-out arrangements.  The draft ruling follows an earlier draft ruling in relation to the less common immediate transfer farm-out arrangements.  read more…

 

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Eyewitness Evidence Critique May Help In Harassment Defense

By: James P. Flynn

The New Jersey Supreme Court issued a lengthy, sweeping decision on August 24th on the standards for evaluating eyewitness testimony in criminal cases that is garnering national, and even international, attention.  See NY Times report at http://www.nytimes.com/2011/08/25/nyregion/in-new-jersey-rules-changed-on-witness-ids.html ; Wall Street Journal report at  http://blogs.wsj.com/law/2011/08/24/new-jersey-high-court-alters-witness-identification-standards/ ; Reuters report at  http://www.reuters.com/article/2011/08/25/us-crime-witness-id-idUSTRE77O8DA20110825 . Though the case entitled State v. Larry Henderson and its companion case entitled State v. Cecilia, both available at http://www.judiciary.state.nj.us/opinions/index.htm,  involved eyewitness identification testimony, the Supreme Court dealt at great length with more general issues eyewitness testimony and “how memory works.”  Those parts of the opinion may be especially helpful in challenging the memory of plaintiffs and witnesses in employment cases generally, and in hostile environment claims in particular.

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Government contractor to pay more than $540,000 to settle discriminatory hiring case with OFCCP

By: Dean R. Singewald II

A recent settlement with the Department of Labor’s Office of Federal Contract Compliance Programs (the “OFCCP”) has once again made clear that, if an employer is a federal government supply and service contractor or subcontractor subject to the affirmative action/non-discrimination obligations imposed by Executive Order 11246, including the obligation to develop and maintain a written affirmative action program, it is imperative that the employer properly track its applicants and hires.

Such tracking should include documenting the gender and race/ethnicity of each applicant, the stages of the selection process at which each applicant meeting the minimum qualifications for the position is considered, and the reason(s) why such applicant is not hired. Records obtained and generated during the hiring process, including resumes, applications and interview notes, also need to be kept to support each hiring decision.

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