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August 12, 2010
MMTA Trade and Lobby Committee's Newsletter: Issue XII
Minor Metals Trade Association
Topic discussed in this issue of the MMTA Trade and Lobby Committee's Newsletter - Input requested on new rules for VAT collection.
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Articles
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August 2, 2010
The Business Strategy Immunity and Its Application Beyond Hostile Transactions
BNA's Securities Regulation & Law Report
When a client has serious concerns about producing its most sensitive business information during litigation, corporate counsel should consider whether the business strategy immunity applies. The business strategy immunity generally protects from disclosure information concerning a party’s highly confidential business strategies, the premature disclosure of which would result in severe harm. This doctrine, once known as the ‘‘white knight privilege,’’ initially arose in the context of target companies defending against hostile bids for corporate control. In that context, the immunity protects against the premature disclosure of business plans, proposals, or alternatives actively under consideration by the target company or the acquiror. Generally, it protects a party’s ongoing deliberations against the risk that the information disclosed in litigation will undermine a party’s competitive position in ongoing negotiations. While the business strategy immunity is often asserted in litigation arising out of proposed hostile transactions, it has also been invoked in broader litigation contexts. This article outlines the scope of the business strategy immunity and explains why counsel in other settings seeking to shield certain materials from discovery may consider utilizing this doctrine.
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Articles
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July 30, 2010
Government Enacts Further Sanctions Against Iran
International Law Office
On July 1, 2010, President Obama signed into law the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (H.R. 2194) (the Act). Because the United States already maintains a nearly comprehensive embargo of Iran, this Act largely targets the activities of non-U.S. companies doing business in that country, particularly in its petroleum sector. However, even U.S. companies – especially U.S. financial institutions and U.S. government contractors – may be affected by the Act’s wide-ranging provisions.
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Articles
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July 23, 2010
BIS Liberalises Export Controls for Encryption Items
International Law Office
On June 25, 2010, the U.S. Commerce Department’s Bureau of Industry and Security (BIS) published an interim final rule implementing major changes to the U.S. export controls applicable to encryption items. These changes, effective immediately, simplify the regulation of encryption software, technology and hardware and should substantially reduce the administrative burden associated with the export and reexport of such items.
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Articles
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July 9, 2010
Conference Committee Report on Dodd-Frank Act is Approved
International Law Office
At 5:39 am on Friday June 25, by separate votes along strict party lines of 20 to 11 and seven to five, House of Representatives and Senate conferees separately approved the Conference Committee Report on the financial regulatory reform bill, HR 4173, now known as the Dodd-Frank Wall Street Reform and Consumer Protection Act. Different versions of the act had been approved by the House of Representatives in December and by the Senate in May. Following reaction by some legislators to the so-called 'bank tax' to fund the estimated $22 billion administrative and other costs of the act over 10 years, conferees reconvened on June 29 to adopt an alternative funding mechanism provision by a similar partisan vote. House Financial Services Chairman Barney Frank presided over the seven-plus days of televised public hearings of the conferees. The act was approved by the House of Representatives on June 30 by a 237 to 192 vote, with Senate action to follow. President Obama is expected to sign the measure into law shortly after final approval by the Senate. The act will generally take effect one day after the date of enactment, with certain exceptions.
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Articles
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July 6, 2010
MMTA Trade and Lobby Committee's Newsletter: Issue XI
Minor Metals Trade Association
Topic discussed in this issue of the MMTA Trade and Lobby Committee's Newsletter - Is your company in compliance with EU Reach regulations while remaining competitive?
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Articles
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July 2010
The Proposed United States Covered Bond Act of 2010
The Banking Law Journal
Recently, the United States Covered Bond Act of 2010 was proposed in Congress. The Act would create a comprehensive statutory regime for the issuance of covered bonds by banks, bank holding companies, and certain other eligible issuers similar to that which exists for issuers in many European jurisdictions. The authors explain the important provisions of the Act and conclude it is a meaningful step forward in the development of a U.S. covered bond market.
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Articles
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June 23, 2010
MMTA Trade and Lobby Committee's Newsletter: Issue X
Minor Metals Trade Association
Topic discussed in this issue of the MMTA Trade and Lobby Committee's Newsletter - EU Critical Raw Materials: is your product on the list and what does it mean?
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Articles
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June 14, 2010
Regulated Social Media: Practical Advice for Addressing Evolving Technologies in Regulated Industries
BNA's Privacy & Security Law Report
Social media sites are rapidly redefining the flow of information from corporate entities. Regulated industries, such as pharmaceutical, healthcare, financial services, telecommunications, and professional services, participating in social media must grapple with unique regulatory requirements, as regulators themselves struggle to understand these evolving technologies and issue new guidance or adapt existing rules to fit them. The often unappealing choice between the awkward application of existing regulations and the looming possibility of new regulations specific to social media creates tensions for regulated companies seeking to participate meaningfully in online conversations, while remaining within regulatory paradigms designed without reference to modern interactive media.
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Articles
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2010
Update on U.S. Product Liability Law
The International Comparative Legal Guide to: Product Liability 2010
Sidley lawyers Sara Gourley and Sherry Knutson have authored a chapter on key developments this year in U.S. product liability law in The International Comparative Legal Guide to: Product Liability 2010. This chapter provides an update on each of the following hot topics in product liability law:
- Preemption.
- Brand-name Liability for Injuries Involving Generics.
- Consumer Fraud Class Actions.
- Federal Jurisdiction Under the Class Action Fairness Act.
- Re-Litigation of Class Action Claims.
- Forum Non Conveniens.
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Articles
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May 28, 2010
Stalemate on Temporary Import Duty Suspensions Continues
International Law Office
A partisan Congressional battle over the use of earmarks means that many U.S. companies are currently paying duties on products that had been duty-free before this year – and many other companies are missing out on getting temporary relief from duties on additional products they had hoped would get the benefit starting this year. Earmarks are usually provisions in legislation that direct that funds be used for a particular project (usually in the home district or state of the Member of Congress who proposes it), but a decision by Republicans in the House of Representatives to adopt “a unilateral moratorium on all earmarks, including tax and tariff related earmarks” has ensnared bills that direct that import duties not be collected. The time may be ripe for a significant reconsideration of the process by which these bills are considered.
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Articles
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2010
Managing Corporate Governance Issues in M&A
Inside the Minds
Merger and acquisition (M&A) litigators work seamlessly with their corporate counterparts to advise companies, along with special committees, on fiduciary duties, director independence, liability risks, and potential avenues of litigation. M&A corporate and litigation counsel must ensure that the board of directors is fully informed with respect to its fiduciary obligations. The M&A litigator can also assist at the outset of a proposed transaction in evaluating the corporate strategy and in shaping representation, discovery, and disclosure strategies to maximize the probability of success if the transaction is challenged.
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Articles
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2010
The Lisbon Treaty and EU Trade Defence Instruments: A New Framework for Court Challenges and Decision-making
ITLR (International Trade Law & Regulation)
The Lisbon Treaty has brought about a number of important changes to the EU legal landscape, not least of which are changes in relation to international trade matters. Much attention so far has focused on the increased involvement of the European Parliament (EP) in the legislative decision-making process, regarding both the ratification of international trade agreements and the adoption of so-called internal framework legislation. This article examines the implications of the new decision-making process for trade defence measures, and anti-dumping measures in particular, but focuses first and foremost on the significant practical consequences of a Lisbon Treaty change to the framework for challenges to those measures before the European Courts.
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Articles
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May 2010
Federal Reserve and Federal Trade Commission Issue Risk-Based Pricing Notice Rule
The Banking Law Journal
This article explains the risk-based pricing notice rule enacted by the Board of Governors of the Federal Reserve System and the Federal Trade Commission. The rule provides a general requirement describing when a creditor must provide risk-based pricing notices to consumers, and provides several alternative methods a creditor may use to determine whether notice is required. The article also describes several exceptions to the notice requirement.
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Articles
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May 2010
The Unintended Consequences of Targeting Health Care Fraud
Bloomberg Law Reports - Health Law
At times during the health care debate, Democrats and Republicans only agreed on their zeal to proclaim how much they were committed to intensifying the Government's war on health care fraud. Lost in these moments of rare bipartisanship, however, were the uncounted, but real, costs of the Government's ever increasing focus on health care fraud enforcement.
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Articles
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April 30, 2010
Department of Commerce May Rethink Retrospective Import Duty System
International Law Office
The United States is the only major economy in the world that employs a “retrospective” system for assessing and collecting antidumping and countervailing duties on imports. At the direction of the U.S. Congress, the Department of Commerce’s International Trade Administration is seeking public comment on the relative merits of the existing retrospective system versus a “prospective” system. Comments were due to be submitted to the International Trade Administration by April 20, 2010 and requests to participate in the hearing on the issue were required by April 13, 2010.
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Articles
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April 23, 2010
Trade Negotiators Seek Comment on Elimination of Pharmaceutical Import Duties
International Law Office
Over 9,000 pharmaceutical and chemical intermediates enjoy duty free treatment under the customs regime of the United States and other countries that participate in the World Trade Organization Pharmaceutical Agreement. The Office of the U.S. Trade Representative is seeking public comment on the possible expansion of the list of products subject to this reciprocal duty free treatment (comments were due by April 9, 2010).
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Articles
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April 16, 2010
MMTA Trade and Lobby Committee's Newsletter: Issue VIII
Minor Metals Trade Association
Topic discussed in this issue of the MMTA Trade and Lobby Committee's Newsletter - Italy requests suspension of duties on raw materials including several minor metals.
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Articles
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April 16, 2010
New Rules Ease US Sanctions for Agricultural Exports and Free Speech
International Law Office
The U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) promulgated two final rules this week that ease sanctions against Cuba, Iran and Sudan with respect to key areas of authorized trade. OFAC’s new rules will make it easier for exporters to supply agricultural commodities to Cuba, as well as to support Internet-based personal communications in Cuba, Iran and Sudan. Companies in the agricultural and communications industries should consider whether OFAC’s new rules create additional opportunities for them in these markets.
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Articles
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April 16, 2010
MMTA Trade and Lobby Committee's Newsletter: Issue IX
Minor Metals Trade Association
Topic discussed in this issue of the MMTA Trade and Lobby Committee's Newsletter - Would a review of the Generalised System of Preferences benefit minor metals?
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Articles
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April 7, 2010
MMTA Trade and Lobby Committee's Newsletter: Issue VII
Minor Metals Trade Association
Topic discussed in this issue of the MMTA Trade and Lobby Committee's Newsletter - EU proposes to decrease the duties on silicon.
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Articles
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April 2010
Developments in International Arbitration in Singapore in 2009
Asian Dispute Review
This article provides a thumbnail sketch of some of the more significant developments in international arbitration in Singapore in 2009.
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Articles
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April 2010
Getting the Deal Through - Vertical Agreements 2010
Sidley lawyers wrote four of the chapters in this year's edition of "Getting the Deal Through — Vertical Agreements," a book recently published by Global Competition Review. The book is intended for in-house counsel and provides an overview of antitrust regulation of distribution arrangements in 42 jurisdictions worldwide.
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Reports
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2010
Accountants’ Liability Developments in 2009: Enforceability of Engagement Letter Provisions and Choice of Law
ABA Professional Liability, Annual Review, 2010
In 2009, several courts addressed issues related to one of the most important documents in any accountants’ liability case—the engagement letter defining the scope of the accounting firm’s engagement by its client. It is increasingly common for engagement letters to include provisions addressing how any disputes that may arise between the accounting firm and its client will be resolved. Several decisions this year discussed common engagement letter provisions, including arbitration clauses and limitation of liability clauses. Another decision addressed the important threshold question of what state’s law applies to professional liability claims brought by third parties against auditors.
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Articles
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2010
Clarity or Confusion? A Review of Significant Legal Developments in the 2009 Syndicated Loan Market
LSTA 2010 Loan Market Chronicle
2009 was a year of potentially tremendous shifts in the legal landscape for secured creditors. Whether these changes have eroded the protections individual secured creditors have relied on in making their loans or simply recognized and reinforced the ever-present risks faced by secured lenders in the syndicated loan market is a matter of perspective. Taken individually, Pacific Lumber, Philadelphia Newspapers, Charter Communications, Chrysler, Crown Stock, TOUSA, and Ion Media represent difficult, and sometimes disastrous, outcomes for secured creditors. Taken together they represent a palpable swing in the legal pendulum away from the expansive rights of individual secured creditors toward the rights and remedies of debtors, unsecured creditors, and in some cases the collective action of a syndicate of lenders. Whether these cases will result in restricting the availability of secured credit and/ or increasing the cost thereof remains to be seen.
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Articles
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2010
Liability for Secondary Actors
ABA Professional Liability, Annual Review, 2010
Since 1994, private plaintiffs have been barred from bringing securities fraud claims under Section 10(b) and Rule 10b-5 (or aiding and abetting claims) against defendants who did not make, author, adopt, or have attributed to them a false or misleading statement. In 2009, this prohibition, which began with the Supreme Court’s decision in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994), appeared to be under serious threat of being repealed on two fronts: by appellate court interpretation at the behest of the SEC and by legislative action. If these efforts were successful, the scope of securities lawsuits that could potentially survive a motion to dismiss would be significantly broadened, especially for auditors, attorneys, and other groups that provide professional services to issuers.
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Articles
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March 17, 2010
Is It a Hearing If Nobody is Listening?
Competition Policy International
There are many criticisms of the oral hearing process. Indeed, there is a general growing tide of criticism of the manner in which competition law offenses in the European Union are investigated and prosecuted. It was partly in response to such concerns that on January 6, 2010 the European Commission published three papers setting out best practices in antitrust proceedings, best practices on submission of economic evidence, and a hearing officers' guidance paper. The Commission publication of that guidance included an invitation to submit comments by March 3, and it is understood that the response has been high. However, it was questionable from the outset whether such comments would necessarily lead to any changes. Indeed the process of preparing the package of guidelines took place with some secrecy and there was, regrettably, little appetite to take notice of any external views. Nevertheless those views are being expressed and it is debatable how much longer they can continue to be ignored.
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Articles
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March 14, 2010
U.S. Discovery of European Union and U.S. Leniency Applications and Other Confidential Investigatory Materials
Competition Policy International
An issue of growing importance in global competition law is the risk that materials produced pursuant to one foreign sovereign’s confidential investigations or proceedings will later be subject to civil discovery in the United States. In many jurisdictions, in particular in the European Union and United States, aggressive cartel enforcement has been significantly aided by programs offering leniency to cartel participants. Key to these programs are promises by antitrust enforcers that potentially incriminating documents or oral statements submitted to them by cartel participants will be protected from disclosure in other jurisdictions or proceedings.
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Articles
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March 5, 2010
ITC v the Internet: Fighting to Protect IP Rights Against Online Sales of Infringing Imports
International Law Office
In the fight to protect intellectual property rights against online sales of infringing imports, the U.S. International Trade Commission has emerged as a forum of choice. The ITC has unique tools available to provide cost-effective relief against this seemingly intractable problem.
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Articles
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March 2010
Hybrid Capital Product Development
Focusing on Tier 1 and Other Hybrid Capital Products
The purpose of this edition, as with previous editions, is twofold: first, to provide a general survey of the regulatory developments, whether global, regional or country specific, and executed Tier 1 and other hybrid capital transactions that have taken place in the past year; and, second, to provide a readily accessible guide, organized by issuer, product type and country, of the Tier 1 and other hybrid capital products that have been developed since 1989. The updates and additions in this edition reflect the difficult conditions many issuers have continued to face since the beginning of the global financial crisis in 2007 and the changing regulatory landscape in which we currently find ourselves.
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Books
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February 18, 2010
MMTA Trade and Lobby Committee's Newsletter: Issue VI
Minor Metals Trade Association
Topic discussed in this issue of the MMTA Trade and Lobby Committee's Newsletter - New European customs laws: what this means for your business.
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Articles
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February 16, 2010
Representing Multiple Parties in Derivative Litigation
Bloomberg Law Reports – Corporate Law
Shareholder derivative actions represent a narrow exception to the general rule that a corporation's board of directors has the power to decide whether the corporation should initiate litigation.
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Articles
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February 11, 2010
MMTA Trade and Lobby Committee's Newsletter: Issue V
Minor Metals Trade Association
Topic discussed in this issue of the MMTA Trade and Lobby Committee's Newsletter - Customs classification of goods.
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Articles
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Winter 2010
The Exculpatory Clause Defense to Shareholder Derivative Claims
ABA Business Torts Journal
A director’s responsibilities in serving on a corporation’s board of directors are accompanied by significant personal financial risks. When shareholders disagree with the director’s actions or believe that the director harmed the corporation by inaction, they can assert a breach of fiduciary duty claim. Exculpatory clauses—or, in the parlance of Delaware law, section 102(b)(7) clauses—provide a defense. When properly invoked, exculpatory clauses can provide a basis for the dismissal at the outset of a case of certain types of breach of fiduciary duty damages claims brought derivatively by shareholders. Recent Delaware Chancery Court decisions have accepted exculpatory clauses as a valid defense for director-defendants at the motion to dismiss stage. This article explores how exculpatory clauses work to shield directors from personal liability for non-intentional breaches of fiduciary duties owed to the corporation.
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Articles
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2010
Schemes of Arrangement and Their Ongoing Currency
PLC Cross-border Insurance and Reinsurance Handbook 2010
A scheme of arrangement is an English statutory procedure regulated by Part 26 (Arrangements and Reconstructions) of the Companies Act 2006 (formerly sections 425 to 427 of the Companies Act 1985). Part 26 of the Companies Act 2006 came into force on 6 April 2008, although legislation permitting schemes of arrangement in various forms has existed for over a century. The statutory provisions allow a company to reach a binding compromise or arrangement with its members or creditors, or any class of them.
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Articles
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January 29, 2010
Bureau of Industry and Security Revises SNAP-R Recordkeeping Requirements
International Law Office
On December 4, 2009, the Department of Commerce’s Bureau of Industry and Security proposed a rule that would change certain recordkeeping requirements applicable to exporters and reduce the use of paper documents in the agency’s licensing program. The proposed rule, intended to reduce agency mailing costs and free up staff time, will also impact exporter compliance practices if implemented.
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Articles
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January 26, 2010
MMTA Trade and Lobby Committee's Newsletter: Issue IV
Minor Metals Trade Association
Topics discussed in this issue of the MMTA Trade and Lobby Committee's Newsletter include Climate change and carbon leakage (carbon leakage refers to a situation arising when strict constraints on greenhouse gas emissions in one country result in emissions increasing in another country where industry is not subject to similar limitations).
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Articles
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January 25, 2010
Recent EPA Objections To Title V Permits
Law360
On Dec. 15, 2009, the U.S. Environmental Protection Agency objected, in part, to two Clean Air Act (the Act) Title V permits for new electricity generating capacity. The EPA found each state agency had not adequately considered alternatives to the proposed source during the Best Available Control Technology analysis required by the Prevention of Significant Deterioration program under the Act.
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Articles
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January 22, 2010
Federal Reserve and Federal Trade Commission Issue Risk-Based Pricing Notice Rule
International Law Office
On December 22, 2009, the Board of Governors of the Federal Reserve System and the Federal Trade Commission jointly issued a final rule to implement the requirements of Section 615(h) of the federal Fair Credit Reporting Act. Section 615(h) was added by the Fair and Accurate Credit Transactions Act and provides for so-called 'risk-based pricing' notices. The rule will come into effect on January 1, 2011.
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Articles
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January 22, 2010
Omnibus Appropriations Act May Increase US Exports to Cuba
International Law Office
The recently signed Omnibus Appropriations Act may increase sales to Cuba of agricultural commodities, medicine and medical products by reversing a 2005 interpretation of “cash in advance” as used in the Trade Sanctions Reform Act of 2000. On December 16, 2009, the President signed into law H.R. 3288, which provides fiscal year 2010 appropriations for several departments in the U.S. government. Section 619 of this act reverses a 2005 rule by the Treasury Department’s Office of Foreign Assets Control defining “cash in advance” to require that U.S. suppliers receive payment before goods are loaded onto a carrier for export to Cuba, thereby making trade with Cuba more difficult.
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Articles
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January 18, 2010
MMTA Trade and Lobby Committee's Newsletter: Issue III
Minor Metals Trade Association
Topics discussed in this issue of the MMTA Trade and Lobby Committee's Newsletter include Tungsten (Wolfram) and anti-dumping duties on Chinese material.
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Articles
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January 6, 2010
“At-The-Market” Offerings - Implications Under Regulation M
The Review of Securities & Commodities Regulation
The volatility of the financial markets in the last 18 months has contributed to increased interest in “at-the-market” offerings as a means for public companies to opportunely and incrementally raise capital. These programs raise a number of issues under the securities laws, including the need to navigate the requirements of Regulation M. The authors highlight the issues under Regulation M that should be considered before commencing an at-the-market offering and suggest possible measures to address certain of these issues.
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Articles
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2010
Wider Prospects for ICSID Arbitration Under China’s BITs
An Extract from The Asia-Pacific Arbitration Review 2010
Despite the economic downturn, cross-border investment throughout Asia remained strong in 2008. Notably, intraregional investment, particularly investment originating from Hong Kong and mainland China, grew in 2008. FDI outflows from China to its Asian neighbours more than doubled from US$22 billion in 2007 to US$52 billion in 2008. Similarly, inbound investment to both mainland China and Hong Kong also continued to grow in 2008.
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Articles
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December 2009
Energy Prosecutions: Is the CFTC Out of Gas?
Futures & Derivatives Law Report
Beginning in 2002, the U.S. Commodity Futures Trading Commission (CFTC) has brought attempted manipulation and false reporting enforcement cases against 42 public energy companies and 31 individual traders alleging violations of Section 9(a)(2) of the Commodity Exchange Act (CEA) with respect to their privately negotiated, principal-to-principal, bilateral energy product transactions, assessing $445 million in civil monetary penalties. Section 9(a)(2), entitled “Criminal Penalties,” has distinct prongs for manipulations, corners, false reporting of commodity prices and general antifraud violations under the CEA. This article will discuss whether the CFTC has exceeded its authority in bringing these cases against traders based on off exchange, negotiated bilateral transactions that fall outside of the CFTC’s jurisdiction.
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Articles
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December 18, 2009
The Battle Brewing Over Kyocera
Law360
On Oct. 14, 2008, the Federal Circuit in Kyocera Wireless Corp. v. U.S. Int’l Trade Comm’n, 545 F.3d 1340 (Fed. Cir. 2008) held that the U.S. International Trade Commission exceeded its statutory authority when it found the only named respondent, Qualcomm, in violation of Section 337 but issued a limited exclusion order (“LEO”) barring cell phones from entry into the United States made by third parties if they contained the infringing Qualcomm chips.
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Articles
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December 18, 2009
Congressional Focus on Export Controls May Lead to Greater Domestic Sales Scrutiny
International Law Office
U.S. companies should expect enhanced export enforcement activities focusing on domestic sales as the result of a recent undercover investigation by the Government Accountability Office. With congressional and administration interest in the control of sensitive items and technologies on the rise, U.S. companies should review their screening and know-your-customer procedures, even for domestic sales. U.S. companies should also be prepared for increased industry outreach by U.S. law enforcement agencies and requests to participate in “sting” operations.
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Articles
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December 14, 2009
Spotlight On Hedge Fund Trading Activities
Law360
Criminal and civil complaints filed by the U.S. Department of Justice and the Securities and Exchange Commission against 20 individuals in two separate waves during the last two months signal a new, aggressive posture taken by the federal agencies in pursuing insider trading activities at hedge funds.
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Articles
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December 11, 2009
DHL Settles Export Controls Case for $9.4 Million
International Law Office
On August 6, 2009, the U.S. Commerce Department’s Bureau of Industry and Security and the U.S. Treasury Department’s Office of Foreign Assets Control announced a joint settlement agreement of allegations that DHL unlawfully aided and abetted the unauthorized exportation of goods to Syria, Iran and Sudan in 2004 and also failed to comply with applicable recordkeeping requirements with respect to hundreds of exports.
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Articles
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December 2009
TALF Master Loan and Security Agreement
Real Estate Finance
The Federal Reserve Bank of New York (FRBNY) recently posted on its website a revised version of the Master Loan and Security Agreement (MLSA) for the Term Asset-Backed Securities Loan Facility (TALF), a lending program launched by the Federal Reserve Board in March 2009 and supported in part by an agreement of the Treasury Department to provide certain credit protection to the FRBNY. The MLSA expands on certain of the terms set forth in the FRBNY’s Terms and Conditions and Frequently Asked Questions relating to the TALF and contains specific provisions governing borrowers’ obligations in respect of TALF loans.
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Articles
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November 20, 2009
General Exclusion Orders in the Wake of Kyocera
International Law Office
In 2008 the US Court of Appeals of the Federal Circuit held that the US International Trade Commission did not have the statutory authority to bar entry to downstream products of non-respondents that contain infringing components, except under the exceptional circumstances of a statutory general exclusion order. As expected, the commission no longer issues limited exclusion orders extending to downstream products of third parties. However, at the same time, and perhaps rather unexpectedly, the commission appears to have tightened the requirements for issuance of general exclusion orders against infringing goods from all sources.
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Articles
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November 13, 2009
Departments of Treasury and Commerce Ease Cuba Restrictions
International Law Office
On September 3, the Departments of Commerce and Treasury issued rules aimed at increasing communication between the U.S. and Cuba, which may open up new business opportunities for U.S. telecommunications providers in Cuba. The rules also created two general licenses authorizing travel to Cuba related to the sale of telecommunications, agricultural and medical items. However, these new general licenses are subject to reporting requirements. The rules also relax restrictions on travel to Cuba to visit family members. However, the broad U.S. embargo against Cuba remains in place.
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Articles
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November 6, 2009
Court Challenges Commerce over Imports from Non-market Economy Countries
International Law Office
In what could be a very significant development with respect to antidumping (AD) and countervailing duty (CVD) investigations against imports from non-market economy (NME) countries, such as the People’s Republic of China and Vietnam, the U.S. Court of International Trade last week issued a decision that instructs the U.S. Department of Commerce (Commerce) to reconsider several aspects of its application of countervailing duties to NMEs. The most contentious of the Court’s directions may be its requirement that Commerce develop methodologies to prevent double-counting of subsidies if it applies AD and CVD duties simultaneously on imports of the same product.
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Articles
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November 3, 2009
After-Hours Work: A Potential Liability Hazard
Employment Law360
In today’s climate of exploding litigation under the Fair Labor Standards Act, many employers neglect to consider exactly how to compensate nonexempt employees for the time they spend attending to work matters while away from work. This article discusses potential problems and possible solutions on the subject.
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Articles
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2010
CAFTA-DR Provides Strong Investor Protections But No Flurry of Cases
An Extract from The Arbitration Review of the Americas 2010
The free trade agreement among the United States, the Dominican Republic, and Central American countries (Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua) (known as CAFTA-DR) was signed on 5 August 2004, and has now entered into force in all of the signatory countries. It includes a chapter (chapter 10) setting out minimum standards of protection for member country investors in each other’s territories – including, importantly, an option for the investor itself to enforce those treaty protections directly in binding international arbitration against a host state. This is a powerful tool for CAFTA-DR investors in protecting their investments, and it means that host states must take the promised investor protections seriously.
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Articles
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2010
The European Commission and Investment Treaties
An Extract from The European & Middle Eastern Arbitration Review 2010
Over the past year, the European Commission (the Commission) has continued to take an interest in the relationship between bilateral investment treaties (BITs) and European Union (EU) law. During that time, there have been at least three notable developments. First, the European Court of Justice issued a judgment regarding the consistency of certain provisions in BITs entered into by Austria and Sweden with provisions of EU law. Second, the Commission has continued to take the position that intra-European BITs are unnecessary because of the protections embodied in the EC Treaty, a position that a number of member states have pushed back against. And finally, the Commission has submitted written comments in at least two investor-state arbitrations.
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Articles
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November 2009
PRC Mergers: MOFCOM Takes Control
Asian-Counsel
After over a decade of deliberation, China’s Anti-Monopoly Law (AML) was enacted in 2007 and finally came into force in August 2008. The new law was quickly hailed as a milestone in China’s transition to a fully-fledged market economy. So far, however, the AML’s implementation and enforcement has been gradual. Only in the area of merger control has there been a substantive level of activism, with the Ministry of Commerce (MOFCOM) – in charge of merger reviews – active on both the legislative front as well as in individual enforcement cases. This article explains why companies planning transactions with potential effects in China must be mindful of MOFCOM's growing sophistication and assertiveness.
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Articles
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November 2009
Why Shareholders Should Not Share the Blame in the EU
GCP
Should an independent shareholder which is not itself a party to an antitrust infringement be held liable for the misconduct of a company it jointly owns? The question might raise eyebrows of practitioners in other jurisdictions, such as the United States, where corporate separateness prevails as a general rule and the proverbial corporate veil can be pierced only as an “extreme remedy.” For European counsel and their clients, however, the question has become highly relevant and any nervousness on their part seems justified. The European Commission seems to have adopted an everexpanding theory of “liability by association.” In addition to parents of wholly‐owned subsidiaries and partners in general partnerships, shareholders in jointly‐owned companies increasingly find themselves in the line of fire.
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October 29, 2009
Judicial Review of Merger Decisions in EU Member States
e-Competitions
In a landmark judgment of 19 March 2009, the Irish High Court annulled a prohibition decision of the Irish Competition Authority (CA) blocking the acquisition by Kerry Group of Breeo Foods. As a result of the annulment, Breeo Foods became part of the Kerry Group on 26 March 2009, just seven days after the High Court's judgment and less than seven months after the CA's initial decision to prohibit the transaction.
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2009
Legal and Economic Perspectives Concerning U.S. Government Investigations of Alleged Off-Label Promotion by Drug Manufacturers
Pharmacoeconomics
Sidley partner and global coordinator of the firm's Healthcare practice, Paul Kalb, has co-authored an article in Pharmacoeconomics which discusses the legal and economic perspectives concerning U.S. government investigations of alleged off-label promotion by drug manufacturers.
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October 2009
Hernandez v. Hillsides Inc: Expectations of Privacy in the Workplace?
BNA International's World Data Protection Report
The California Supreme Court has made it clear that, although employees may have an expectation of privacy in the workplace, this expectation is not unlimited.
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October 2009
District Court Dismisses Insider Trading Complaint Against Mark Cuban
Financial Fraud Law Report
The S.E.C. v. Cuban insider trading case is discussed in this article. According to the authors, the case is significant because it reaches important conclusions — at odds with positions taken by the Securities Exchange Commission (SEC) — about the nature of the duty the SEC must establish in a misappropriation case.
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October 2009
Federal Court Dismisses Data Breach Class Action Brought Against J.P. Morgan Chase Based on Federal Preemption
Privacy & Data Security Law Journal
This article discusses a recent New York district court case holding that the Fair Credit Reporting Act (FCRA) requirements for data disposal will preempt similar state laws, thereby making it more clear that financial institutions may be able to rely upon the federal data disposal requirements for credit report information without regard to the growing number of state data disposal laws.
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September 2009
New Revenue Procedure Expands Tax-Safe Modifications for REMIC-Held Commercial Mortgage Loans
Practical U.S./Domestic Tax Strategies
On September 15, 2009, the Treasury Department and the Internal Revenue Service published Revenue Procedure 2009-45 (Rev. Proc. 2009-45), expanding a Real Estate Mortgage Investment Conduit's (REMIC) ability to modify troubled, commercial mortgage loans without jeopardizing the REMIC's tax status or exposing it to prohibited transaction taxes.
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September 15, 2009
The International Climate Change Negotiations and Intellectual Property: Another Climate Change Risk?
International Finance & Treasury
In the context of ongoing negotiations to supplement the United Nations Framework Convention on Climate Change (UNFCCC), many developing countries, including China and India, are making proposals that, if accepted, would undermine important intellectual property rights needed to provide sustainable incentives to develop climate-related technology. These proposals may also redefine key principles contained in international intellectual property agreements, including the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).
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September 14, 2009
An Uneasy Peace: Maine’s Act to Prevent Marketing to Minors and the Continuing Problems of Privacy for Children and Teens
BNA's Privacy & Security Law Report
Although Maine’s new law banning most collection and use of personal data of minors for marketing purposes has been put on hold and may likely never be implemented, the statute has been overwhelmingly successful in increasing the focus on the issues of child and teen privacy, the authors write.
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