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Last update: Mar 20, 2007
Fox Rothschild: Philadelphia's New Stormwater Management Regulatio... Feb 01, 2006
However, under some circumstances, certain development sites are exempt from this requirement. c. Additional Relief from the Stormwater Regulations The Stormwater Regulations provide additional exemptions for emergency maintenance work and special circumstances
McDermott: Competition Regulator in the UK to Strengthen Enforceme... Dec 05, 2005
The PIU will issue guidance on case allocation, which will take into account six prioritisation factors consumer benefit, the strength of available evidence, the nature of the infringement, whether there any other special circumstances, the policy areas affected, and whether the OFT is best placed to handle the investigation (rather than the UK sectoral regulators or the European Commission). The OFT intends to adopt strict timelines for the enforcement process
Goodwin Procter: Consumer and Individual Bankruptcy Jun 01, 2005
The debtor can challenge the presumption of abuse only under special circumstances, such as in the case of a major medical condition or a call or order to active military service, and must always certify the nature of the special circumstances and the accuracy of all of the information provided. While the court will have the power to waive the prefiling counseling requirement if the debtor demonstrates exigent circumstances, the debtor must submit to credit counseling within 30 days after the
Kilpatrick Stockton: Class Action Appeals May 02, 2005
Reflecting the legitimate need for immediate review of class certification decisions in appropriate circumstances, the Federal Rules of Civil Procedure were amended in 1998 to add Rule 23(f). Finally, a Rule 23(f) appeal can be based on "special circumstances" that do not come within the foregoing categories
Goodwin Procter: President Bush Signs S.256 ? Enacting Bankruptcy Reform... May 02, 2005
This special issue of the Alert highlights many of the key provisions of this legislation. The debtor can challenge the presumption of abuse only under "special circumstances," such as in the case of a major medical condition or a call or order to active military service; and must always certify the nature of the special circumstances and the accuracy of all of the information provided
Coudert Brothers: Court overrules SA competition bodies May 01, 2005
The Competition Tribunal, which is the Commission's decision-making arm, and a special Competition Appeals Court agreed. It stated that it would only grant leave to appeal where 'special circumstances' exist - a standard which this case satisfied
Goodwin Procter: Financial Services Alert - Special Edition: President B... Apr 21, 2005
This special issue of the Alert highlights many of the key provisions of this legislation. The debtor can challenge the presumption of abuse only under "special circumstances," such as in the case of a major medical condition or a call or order to active military service; and must always certify the nature of the special circumstances and the accuracy of all of the information provided
Blank Rome: Health Law Insights Mar 01, 2005
LTC Guidance The LTC Guidance requires plans to contract with any willing LTC pharmacy so long as the pharmacy meets minimum performance and service criteria that address: inventory and inventory capacity, pharmacy operations and prescription drug orders, special packaging, IV medications, compounding/alternative forms of drug composition, pharmacists on-call service, delivery service, emergency boxes, emergency log books and miscellaneous reports, forms and prescription ordering supplies.
Gibbons: Negotiating The Bankruptcy Maze Mar 01, 2005
Last year featured some especially favorable factors for the New Jersey business community. They include nursing homes, hospitals, hotels and certain specialty retailers
Goodwin Procter: Recent Amendment to Massachusetts Anti-Discrimination L... Jan 10, 2005
Depending on the circumstances, and regardless of whether the employee filed with VETS, the Attorney General or a private attorney may represent the claimant in a judicial proceeding. In addition, Chapter 151B mandates an award of attorneys' fees to a prevailing plaintiff unless special circumstances would render such an award unjust
Baker Botts: The Shifting Sands of Regulatory Environments: Know You... Oct 18, 2004
Lance D. Cassak is a special counsel in Baker Botts' New York office and, before joining the firm, was Regional Counsel for Enforcement at the Office of Thrift Supervision, responsible for the office's enforcement efforts in the eastern third of the United States. Thus, with some regulators, it is easy to misread the threat of an enforcement action, especially early in the process, and to assume that the regulatory agency is approaching the problems with the same adversarial sense that one
Kramer Levin: PDF Summer 2004 Newsletter Jul 01, 2004
Under these circumstances, the court held that the DRP was not enforceable against the employee because notice of the DRP was insufficient noting that the employer "seemed to have done as little as it could to ensure their employees were informed of a program that substantially affected their employee's legal rights" and the employee could not be held to have agreed to it. 2003), the Second Circuit held that there were no "special circumstances" sufficient to invalidate the parties'
Jones Day: Ministry of Construction Issues Administrative Measures... Jun 01, 2004
Normally such evaluation will be conducted every two years, although in special circumstances an annual evaluation may be undertaken. Jones Day Commentaries are a publication of Jones Day and should not be construed as legal advice on any specific facts or circumstances
Dorsey & Whitney: The Role of the Audit Committee for a Non-Public Cooper... Jun 01, 2004
The Audit Committee CharterThe audit committee of a private cooperative should probably meet two to four times a year, or more often if dictated by special circumstances. Disclaimer©2004 Dorsey ey LLP. This Ag-Coop News is intended for general information purposes only and should not be construed as legal advice or legal opinions on any specific facts or circumstances
Morrison & Foerster: Judgment of European Court of Justice in IMS Health v. ... May 18, 2004
It does so by providing what appears to be a new answer to the question: what are the “exceptional circumstances” in which an IPR holder who holds a dominant position on a market infringes Article 82 of the EC Treaty (which prohibits abuse of a dominant position) by refusing to grant a license of that IPR. The ECJ’s 1995 Magill judgment found there were “exceptional circumstances” where a refusal to license prevented the appearance of a new product, there was customer demand for the new product,
Morrison & Foerster: Judgment of European Court of Justice in IMS Health v. ... May 18, 2004
It does so by providing what appears to be a new answer to the question: what are the “exceptional circumstances” in which an IPR holder who holds a dominant position on a market infringes Article 82 of the EC Treaty (which prohibits abuse of a dominant position) by refusing to grant a license of that IPR. The ECJ’s 1995 Magill judgment found there were “exceptional circumstances” where a refusal to license prevented the appearance of a new product, there was customer demand for the new product,
Hogan & Hartson: "The Technology Escrow: A Critical Business Contin... May 01, 2004
These release events are often vigorously negotiated, and they should cover circumstances that would jeopardize the company's business continuity by providing that the company will receive the deposited information or materials if the supplier closes its doors, becomes insolvent or ceases to perform obligations that are critical to the company's ability to operate its business. Although certain allocations of responsibility for payment of the escrow agent's fees have become customary, special
McDermott: Medicare Act Impacts Sub-Acute and Post-Hospital Provid... Jan 21, 2004
Five high-volume items, oxygen and oxygen equipment, standard wheelchairs, nebulizers, diabetic supplies, hospital beds and air mattresses, are singled-out for special treatment. com, page 25 for description of special payment treatment, supplier quality standards and documentation of medical necessity for certain DME like power wheelchairs
Hodgson Russ: Employee Benefits Developments 11/3 to 11/14 2003 Nov 21, 2003
Department of Labor regulations clearly provide a claims administrator must respond to a request for review of an adverse claim within 60 days, unless special circumstances warrant a 120-day review period. As Prudential recently learned, failure to heed the claims procedure time periods can be costly
Jones Day: FERC Issues Final Rule for Cash Management Arrangements... Nov 01, 2003
McDermott: Employment Alert No. 72 - Redundancy - Collective Consu... Aug 12, 2003
McDermott - Newsletters - Employment Alert No. 72 - Redundancy - Collective Consultation - Special Circumstances Defence if (document. selectedIndex=0; } Please select a language: English Italian German PUBLICATIONS NEWSLETTERS EMPLOYMENT ALERT NO. 72 - REDUNDANCY - COLLECTIVE CONSULTATION - SPECIAL CIRCUMSTANCES DEFENCE August 12, 2003 THE WITHHOLDING OF RELEVANT INFORMATION BY A PARENT COMPANY IS NOT A "SPECIAL CIRCUMSTANCE" MAKING IT NOT REASONABLY PRACTICABLE FOR A SUBSIDIARY COMPANY TO
McDermott: Employment Alert No. 71 - Redundancy - Payment of Prote... Aug 07, 2003
They stated the Tribunal must consider whether there are any special circumstances to justify reducing that period. In this case, there were no such circumstances, and an award of 90 days pay for failing to consult was made
Dykema Gossett: August 2003 Aug 01, 2003
The IRB should have clear policies and procedures for emergency review, waiver of IRB review and any reviews involving special circumstances or hazardous products. The IRB may approve research (including continuing reviews) only at a meeting where a quorum is present
Thelen Reid & Priest: FDA Releases More Bioterrorism Proposals: Announces it ... Jun 20, 2003
The FDA district director must approve the issuance of the detention order, which may be in effect for no more than 20 days (30 under special circumstances). Within 10 days of receipt of the detention order - two days for perishable commodities - a person with a verified claim to the food may appeal the detention order and FDA must either affirm or terminate the detention order within five calendar days
Foley Lardner: Top Ten Securities Law Decisions in 2002 May 05, 2003
Dechert: Corporate & Securities / Special Alert&nb... Apr 01, 2003
...xc APRIL 2, 2003 / SPECIAL ALERT | CORPORATE ITIES · 2. applicable only to foreign private issuers in order to address the special circumstances of particular foreign jurisdictions)
Faegre & Benson: Reasonable Investigation in a Post-Sarbanes World: What... Mar 01, 2003
Historically, and absent special circumstances, underwriter interaction with accountants has been limited to the accountant s participation in the organizational meeting and drafting sessions (which is frequently limited), a relatively brief interview outside the presence of financial management, and review and discussion of the accountants comfort letter. Underwriters and counsel should carefully scrutinize these practices, not just for compliance with applicable law and regulations, but also
Hogan & Hartson: "HIPAA Frequently Asked Questions: Covered Entity ... Mar 01, 2003
...at 82569] This policy is explicit recognition of the fact that a drug or device manufacturer's clinical and scientific personnel may provide invaluable information and advice to a physician who is new to using a product, or whose patient presents unique circumstances that may previously have been reported to the manufacturer in research or in another provider inquiry. Do providers need a business associate agreement with manufacturers for treatment consultations
Hogan & Hartson: "HIPAA Frequently Asked Questions: Covered Entity ... Mar 01, 2003
...at 82569] This policy is explicit recognition of the fact that a drug or device manufacturer’s clinical and scientific personnel may provide invaluable information and advice to a physician who is new to using a product, or whose patient presents unique circumstances that may previously have been reported to the manufacturer in research or in another provider inquiry. Do providers need a business associate agreement with manufacturers for treatment consultations
White & Case: February 2003 Feb 01, 2003
However, the Court noted that an employee may submit evidence of special circumstances that make "reasonable" an exception to the seniority rule. Justice Breyer noted that an employee can, however, show special circumstances to show that making an exception for the employee from the seniority system is reasonable
Dorsey & Whitney: Major Changes in The Iowa Business Corporation Act Jan 31, 2003
...(§ 1606) Articles may establish percentage of shares needed to call special meeting, but not more than 25. (§ 702) Unless otherwise provided in articles, shareholder demanding special meeting may revoke demand any time prior to receipt by corporation of enough demands to require meeting
Dorsey & Whitney: Major Changes in The Iowa Business Corporation Act Jan 31, 2003
...(§ 1606) Articles may establish percentage of shares needed to call special meeting, but not more than 25. (§ 702) Unless otherwise provided in articles, shareholder demanding special meeting may revoke demand any time prior to receipt by corporation of enough demands to require meeting
White & Case: Preparing For The Impending Spectrum War Jan 15, 2003
In the future, the FCC would like to limit use of this model to instances of denominated "public service" bands or other special circumstances, including broadcast or satellite transmissions. In general, the exclusive rights approach would be nominally targeted to circumstances in which scarcity is relatively high and transaction costs associated with market-based negotiation of access rights are relatively low (especially prevalent for spectrum below 5 GHz), whereas the commons approach would
Paul Weiss: The Kwiatkowski Decision: Implications for the Nature ... Dec 01, 2002
Providing advice does not trigger any ongoing duty to update, augment or modify that advice, or to provide continuing advice even if factual circumstances change, and the broker is not required to make continuing suitability and risk assessments. Finally, special circumstances of the broker-client relationship may require a higher duty of care than that owed in the ordinary course, but those circumstances are limited to situations in which the broker, due to some incapacity or vulnerability of a
Holland & Knight: 19-Nov-02 Nov 19, 2002
The Court reasoned that since the employee would have been entitled to FMLA leave to be with his sick child in the hospital, and since he needed to stay with his other children only because his wife was staying with the hospitalized child, the FMLA should be construed liberally to cover the special circumstances. Susan H. Joffe The Lawyers resident in all offices, unless otherwise indicated in an individual attorney biography, are not certified by the Texas Board of Legal Specialization
Allens Arthur Robinson: Focus: Product Liability Nov 12, 2002
Facts and history of proceedings House of Lords decision Implications Facts and history of proceedings The judgment involved three appeals to the House of Lords on the issue of causation that were joined due to the similar factual circumstances of three claimants suffering from mesothelioma. top of page House of Lords decision The House of Lords addressed the appeal by the claimants from the decision of the Court of Appeal,2 by considering whether, in the special circumstances of such a case,
Littler Mendelson: The EEOC's Updated ADA Enforcement Guidance Incorp... Nov 01, 2002
1516 (2002), which held that, absent "special circumstances," it will be "unreasonable" for an employer to reassign a disabled employee in violation of a seniority system. In some circumstances, the individual can also be required to submit to an examination by a health care professional of the employer's choice, at the employer's expense
Jones Day: OIG Focus on One-Day Inpatients and Combined Admissions Nov 01, 2002
To varying degrees, they have reportedly moved toward a blanket rule that, absent certain special circumstances (such as a patient death or a patient decision to leave the hospital against medical advice), one-day cases cannot be billed as inpatients. Hospitals that come under a fraud investigation should understand that many challenged cases may be defended, depending on the particular facts and circumstances
Jones Day: OIG Focus on One-Day Inpatients and Combined Admissions Nov 01, 2002
4 To varying degrees, they have reportedly moved toward a blanket rule that, absent certain special circumstances (such as a patient death or a patient decision to leave the hospital against medical advice), one-day cases cannot be billed as inpatients. Hospitals that come under a fraud investigation should understand that many challenged cases may be defended, depending on the particular facts and circumstances
Proskauer Rose: Fall 2002 Oct 01, 2002
Parsons Behle & Latimer: FMLA and ADA: Good and Bad News for Employers Oct 01, 2002
The Court, however, also held that under “special circumstances” a disabled worker may be entitled to an exception to a seniority policy. The Court explained that if an employer does not always follow its own seniority policy, it would not be “an undue hardship” to make an exception for a disabled employee
Ashursts: Product Liability Briefing Oct 01, 2002
This general principle was not in question, the issue being whether in the special circumstances of these cases it should be varied or relaxed. On the other, there was the argument in favour of compensating those who had contracted serious injury in circumstances where employers were in breach of duty to protect them against the very injury contracted and science did not permit the claimant to identify, as between those employers, the precise responsibility for the injury
Kramer Levin: PDF October 2002 Newsletter Oct 01, 2002
However, the Court also found that an employee may be allowed to present evidence of "special circumstances" demonstrating that the requested accommodation or assignment was reasonable. However, the Court held that an employee may rebut this presumption by presenting special circumstances warranting a finding that, despite the presence of a seniority system, the requested "accommodation" is "reasonable" on the particular facts
Weil: Administrative Expense Claim for Substantial Contributi... Sep 01, 2002
Although a creditor generally is not entitled to recover expenses incurred in the course of bidding for a debtor s assets, even if the sale proceeds were increased as a result of the creditor s bids, the court held that a creditor s expenses may be allowed as administrative expenses in special limited circumstances in which there is a direct and demonstrable benefit to the bankruptcy estate. Bankruptcy Court Finds Special Circumstances Justify Award of Administrative Expense Priority Rejecting
Fried Frank: Timetables for the Performance of Tender Offers in Fran... Aug 12, 2002
French Law No. 2001-420, dated May 15, 2001, known as the new economic regulations ("NRE") law, introduces to the French Labor Code a special procedure for information and consultation with the shop committee (workers council) in the case of a tender offer. The CMF Regulations provide a simplified procedure for tender offers in special circumstances; such as, an offer by a person already owning a majority of the target's shares; an offer for no more than 10% of the target's shares; or an offer
Gibson Dunn: Supreme Court Holds That Seniority Policies Ordinarily ... Aug 01, 2002
An employee can avoid this general rule only by demonstrating that special circumstances make a departure from the seniority policy reasonable in the particular case. Those "special circumstances" could include whether the employer frequently changes the terms of the seniority policy or whether the policy itself contains numerous exceptions
Lowenstein Sandler: NASDAQ Approves Corporate Governance Rule Proposals Jul 31, 2002
Allens Arthur Robinson: Focus: Tax Jul 04, 2002
These are that the supplier took reasonable steps to mitigate the reason for the delay in the payment or that there are special circumstances that make remission of the GIC fair and reasonable. It remains to be seen whether the ATO will develop a concessional policy for taxable supplies incorrectly treated as non-taxable in circumstances where there is no loss of revenue
Jenkens & Gilchrist: Health Law News Jul 02, 2002
OIG OKs Physician-Owned, Single Specialty ASC 2. OIG OKs PHYSICIAN-OWNED, SINGLE-SPECIALTY ASC By Nneka C. Egbuniwe People seeking OIG advisory opinions sometimes ask issues involving gray areas of the law while some merely ask whether or not a proposed transaction fits within a safe harbor
Baker Botts: Patent Counterclaim May Not Create Federal Circuit Juri... Jul 01, 2002
The Court refused to adopt its "arising under" jurisprudence to the special mandate of the Federal Circuit in order to preserve the uniformity of patent law. Vornado asked the court to adapt its "arising under" jurisprudence to patent law counterclaims in view of the special circumstances of the Federal Circuit's jurisdiction, which Congress created to promote uniformity of patent law
Shaw Pittman: U.S. Supreme Court Issues Two Pro-Employer Decisions Un... Jun 20, 2002
The Act did not, however, stop an employer from making decisions based on each person s individual circumstances. The employer should also give due care to each individual s circumstances before making a hiring decision
Seyfarth Shaw: Supreme Court Issues Trilogy of Pro-Employer ADA Decisi... Jun 12, 2002
The court concluded that triable issues of fact existed as to the reasonableness of Barnetts accommodation requests for special lifting equipment and for restructuring the cargo position. Rather, the Court recognized that special circumstances could require the employer to deviate from seniority
Dewey Ballantine: Analyzing the Use of Net Operating Losses: What Can Deb... Jun 02, 2002
McGlinchey Stafford: Smack Dab in the Middle (ADA conflict with seniority) Jun 01, 2002
Justice Breyer said a plaintiff must show evidence that “special circumstances surrounding the particular case ... demonstrate the assignment is nonetheless reasonable.” The case in question was brought by an airline employee who injured his back while working as a cargo handler. When he returned to work after his injury, he was transferred to a mailroom job, but two years later he learned that two other workers with more seniority intended to bid for his job
Bricker & Eckler: Update Regarding Recent ADA Decisions Favorable to Empl... Jun 01, 2002
However, the decision must still be based on (1) an individualized inquiry of the specific circumstances; and (2) a reasonable medical judgment. The burden is on the employee to show special circumstances that make an exception to the seniority system reasonable in the particular case
Ashursts: New Guidance on Redundancy consultation Jun 01, 2002
Exceptions from this requirement In the Middlesbrough case, the Council argued that its serious financial problems amounted to "special circumstances" which meant it was not reasonably practicable to comply with the consulting obligations. The EAT held that this did not absolve the Council from consulting on ways to avoid the dismissals, stating that even where the employer believes its case for making the redundancies is unanswerable, this will not preclude a finding that the employer has
Goodwin Procter: Reconsidering Environmental Insurance: A Maturing Marke... Jun 01, 2002
These claims, and the tragic circumstances of September 11th, have impacted the environmental-insurance market, as well as policyholders' perceptions of that market and the product. We also understand that XL will consider coverage for clean ups in excess of $2 million and in excess of $1 million in special circumstances, e.g., for existing policy holders
Miller & Chevalier: China's Anti-Dumping Regulations May 31, 2002
The final regulations state that 12 months is the maximum time to decide a dumping case, except when "special circumstances" warrant another six months. The draft regulation did not make clear that China must find dumping, injury to the domestic industry, and a link between dumping and injury before imposing antidumping duties on imports
Gibbons: The Seventh Circuit Rejects Arbitration Agreement Requi... May 29, 2002
Attorney fee awards are one of the remedies provided prevailing plaintiffs under Title VII. The court commented, moreover, that in the absence of special circumstances rendering such an award unjust, a prevailing party should ordinarily be awarded attorney's fees in civil rights actions. When drafting Title VII, in order to ensure that lawyers would be willing to represent plaintiffs in civil rights actions, Congress determined that it would be necessary to compensate lawyers for all time
Thelen Reid & Priest: Supreme Court Holds That Employers Generally Are Not Ob... May 15, 2002
The Court established a rebuttable presumption that applies "in the run of cases," but allowed employees to overcome that presumption by demonstrating "special circumstances" that would make their request for an accommodation reasonable. The Court specifically held that the plaintiff would bear the burden of showing the special circumstances that would justify an exception to the seniority system
Manatt: EmploymentLaw@manatt May 13, 2002
Moreover, it would appear that in these circumstances, summary judgment should be granted after an employer provides proof of a seniority system as, "ordinarily the [Americans with Disabilities Act ("ADA")] does not require the assignment. Hence a showing that the assignment would violate the rules of a seniority system warrants summary judgment for the employer...." (emphasis in original). In Trans World, the Supreme Court held that an employer need not adopt an employee's special worship
Gibbons: The ADA Generally Will Not Require Employers to Abandon... May 07, 2002
The Court allowed for the possibility, however, that "special circumstances" might require the employer to grant the requested accommodation. The Court did not provide an exhaustive list of such circumstances but gave as examples situations where the employer routinely ignored its own seniority system or where its seniority system already contained exceptions such that one more exception would not frustrate the expectations of the workforce
Bracewell & Patterson: Supreme Court Adopts New Standard for Cases Under the A... May 06, 2002
Inthatcase,theCourtobserved,onemoredepartureneededtoaccommodateanindividualwith a disability "will not likely make a difference." The employee might also show that the seniority system alreadycontains exceptions such that, under the circumstances, one further exception is unlikely to matter. The Court cautioned that these examples do not "exhaust the kinds of showings that a plaintiff might make." What the Court means by providing such examples is that the employee must bear the burden of
Holland & Knight: 3-May-02 May 03, 2002
The Court instructed that, generally, a seniority system will prevail because, ordinarily, a requested accommodation that conflicts with the rules of a seniority system will not be "reasonable." However, the Court recognized that special circumstances, like frequent exceptions to a seniority system, might enable a disabled worker to overcome the presumption in favor of a seniority system by helping to establish that making an exception for him or her would not significantly upset employees'
Greenberg Traurig: U.S. Supreme Court Rules That Employers Do Not Have To ... May 01, 2002
U.S. Supreme Court Rules That Employers Do Not Have To Disturb Seniority Systems To Accommodate Disabled Employees Absent Proof Of Special Circumstances PUBLICATIONS ALERTS 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 GT Alert U.S. Supreme Court Rules That Employers Do Not Have To Disturb Seniority Systems To Accommodate Disabled Employees Absent Proof Of Special Circumstances May 2002 By John F. Scalia, Esq. "The Court held that while "the seniority system will prevail in the run of
Sills Cummis: E&L May 2002.PDF May 01, 2002
The Supreme Court remanded the case in order to allow the District Court to determine whether Barnett could demonstrate "special circumstances" that warrant a finding thattherequiredaccommodation was reasonable despite its conflict with the company's seniority policy. Where there is a conflicting seniority policy, however, such an assignment "will ordinarily be unreasonable." In reaching this conclusion, the Court noted that courts have not interfered with seniority systems in analogous
Dykema Gossett: Supreme Court Offers No Simple Answer to Question Wheth... May 01, 2002
Such "special circumstances" include a showing that the employer, having retained the right to. e., fostering employee reliance on fair, uniform treatment), and denying any intention to undermine seniority systems, the Court's invitation to employees to demonstrate "special circumstances" nevertheless will have the practical effect of making summary judgment in such cases more difficult
Morgan Lewis: Managing Conflicts - NSCP 2002 East Coast Regional Memb... May 01, 2002
Other Requirements in Special Circumstances Regulatory limitations - vary by conflict Exemptive relief (e. g., under the Investment Company Act)
O'Melveny & Myers: Client Alert - Amar - May 2002 (PDF) May 01, 2002
As counsel of record for US Airways in this case, we take special pride in the Court's decision. Our labor and employment attorneys Robert Siegel, Tom Jerman, and Dipanwita Deb Amar, in conjunction with OMM appellate specialist Walter Dellinger, litigated this case before the Court
Kirkpatrick & Lockhart: Supreme Court?s US Airways Decision: Employers Are Not ... May 01, 2002
Justice Stephen Breyer, writing for the majority, explained that the employee must show that the accommodation is reasonable, i.e., is plausible or ordinarily possible under the employer's particular circumstances. Once the plaintiff/employee makes this showing, the burden shifts to the employer to establish case-specific circumstances that demonstrate why the accommodation causes the employer an undue hardship in its operations
Baker Botts: Supreme Court Reports Apr 30, 2002
In cases where an employer can show that a disabled employee was refused accommodation because of an existing seniority system, the employer’s action is presumptively reasonable, entitling it to summary judgment absent evidence produced by the employee revealing special circumstances that would make such action unreasonable. But what the Court taketh away, it then giveth back in part -- plaintiffs may rebut the presumption that a seniority system makes an accommodation unreasonable by showing
Seyfarth Shaw: Summary of Supreme Court Decision - U.S. Airways v. Bar... Apr 29, 2002
However, the employee may be able to show special circumstances justifying an exception to the seniority-based rule. Rather, employers can lawfully apply seniority policies in most cases, even to the disadvantage of employees with disabilities, unless the employee can demonstrate special circumstances which would warrant an exception to the seniority-based rule
Miller Canfield: Seniority System Generally Trumps ADA Accommodation Req... Apr 01, 2002
The employee's case may go forward, however, if the employee can show "special circumstances" that would make it reasonable for the employer to make an exception to its seniority policy. The Court's majority opinion makes clear that seniority - unlike most other types of policies, rules, or status in the non-union employment environment - has a special importance to employee-management relations
Hale Dorr: PDF Mar 01, 2002
Gibbons: NLRB Finds Restrictions on Screen Saver Messages Discri... Jan 23, 2002
Goodwin Procter: Financial Services Alert Jan 15, 2002
Subject to the special circumstances described below, the deduction from Tier 1 capital (for purposes of the risk-based capital ratio and the leverage ratio) is as follows: Deduction for Nonfinancial Equity Investments. Special Circumstances
Gibbons: Employment & Labor Law Alert Nov 28, 2001
The employer argued that the employee would have been summarily discharged two years prior to his alleged constructive discharge had his involvement in a conspiracy to lie about the circumstances surrounding a chemical spill been discovered. The Court held that while Tappe was not required to plead "special circumstances", he nevertheless was required to allege in his Complaint, specific facts that would give rise to an inference of discrimination
Gibbons: New York Federal Judge Dismisses Reverse Race and Age D... Nov 16, 2001
Discrimination Claims As Tappe, a white male under 40 years of age, does not fall into any of the traditional protected classes under Title VII, the Court had to first determine whether Tappe had to plead "special" or "background circumstances" that Alliance is the type of employer that discriminates against the "majority" so that Tappe could be considered a member of a protected class. Although the Second Circuit Court of Appeals has not decided the issue of whether a plaintiff in a reverse
Orrick: Forming and Managing a Citizens Oversight Committee Nov 06, 2001
Your oversight committee could become a valuable ally in this process; its members will best understand the district's needs and special circumstances. Resource Series, check our website: following school finance specialists
Michael Best & Friedrich: Health Care Update (November 2001): The Disclosure of M... Nov 01, 2001
Inaddition,provisions in the policy should address the following specific issues: · use of bioethics consultations in the disclosure process in appropriate circumstances; · identificationofspecifiedindividualswhobearresponsibility for disclosure; · documentation requirements; · the relationship between unanticipated outcomes disclosure, the hospital's corporate compliance plan, and the hospital's sentinel event investigation and reporting policies; · the relationship between unanticipated
Weil: District Court Overseeing Receivership Is Subject to Au... Nov 01, 2001
The Fourth Circuit concluded that Congress intended that the bankruptcy process be favored in circumstances such as these. The court stated that although the district court has broad equity power, any attempt to use that power to supervise a complex corporate liquidation, in the absence of special circumstances, would ultimately be more clumsy and expensive than long-established bankruptcy procedures
Faegre & Benson: Charitable Fundraising Could Imperil Your Company'... Oct 01, 2001
Broader restrictions on when and where solicitation is prohibited can be justified by an industry s or an employer s special circumstances. As with no-solicitation rules, broader restrictions on distribution of literature can be justified by special circumstances
Kirkpatrick & Lockhart: Equity Compensation in Troubled Times Oct 01, 2001
Some plans provide for the payment of a pro rata award if employment ends during the performance period due to special circumstances, such as the employee's death, disability or retirement. Plans under which shares of stock may be issued may, under certain circumstances, avoid registration on a "no sale" theory, but resale restrictions may be applicable if the shares are not registered
Allens Arthur Robinson: Non-corporate receivership - when is it appropriate and... Sep 05, 2001
The most common instance of the appointment of a receiver is that in respect of the whole or part of the property of a corporation, especially where the appointment is made out of court pursuant to an express power in an instrument such as a mortgage or debenture. Disputed title A receiver may be appointed where the title to land or other property is in dispute but only in special circumstances where the defendant is in occupation25
Piper Rudnick: More Franchise Laws to Come? Bet on It! Sep 01, 2001
Foley Lardner: Wegner v. U.S. Patent and Trademark Office Aug 23, 2001
Epstein Becker & Green: Retail Industry Picketing and Hand Billing: Access Righ... Aug 01, 2001
However, the NLRB ruled against a right of access for union organizers in these circumstances. The shopping mall included two large department stores and over one hundred smaller specialty stores generally clustered together and grouped in aisles in the middle of the mall
Brown Raysman: Election of Remedies: Lender Must Choose Foreclosure or... Jul 18, 2001
Application of the Doctrine As in all matters, there are exceptions to this rule, particularly where "special circumstances" exist. For example, courts have found the existence of special circumstances where a mortgagee has shown that it will not be able to satisfy the amount due on a mortgage from a foreclosure action, where there are allegations of fraudulent conduct by the mortgagor or guarantor, and in some instances when a foreclosure action is
Morgan Lewis: NLRB Extends Rights to Have Co-Employee Present at Inve... Jul 01, 2001
The employer must honor the employee's selection unless there are special circumstances which would warrant precluding the representative chosen by the employee, such as the fact that the representative is herself a material witness, or the selected representative's unavailability would unduly delay the interview. The likely remedy for a violation of an employee's Weingarten rights in a nonunion environment may also be gleaned from NLRB decisions in a union context
Allens Arthur Robinson: In the Money Jun 16, 2001
Capital issues Privacy It does concern you FSR Bill (CLERP 6) Now on the table Listing Rule amendments ASX responds ASIC prepares for FSR 7 Policy Papers released Investment Clubs Caught as a managed investment scheme Directors' duties Owed to individual shareholders only in special circumstances Singapore's Big Bang Regulatory overhaul of the industry Securitisation The Flight to Quality Click to download a print-ready PDF version (123 KB). If you enjoyed this publication and would like to be
Allens Arthur Robinson: Focus on Mergers and Acquisitions May 04, 2001
Merger accounting may be available depending on the circumstances (although that will become less of an issue if other countries adopt the new US approach to goodwill amortisation). top of page Directors' fiduciary duties to shareholders In brief: In what circumstances will a director owe fiduciary duties to individual shareholders
Weil: Court Finds Duty To Update Public Statements By Issuers Mar 01, 2001
Finding a duty to update a disclosure of a takeover threat, the court continued, is a far cry from finding a duty to update a simple earnings forecast which, if anything, contains a clear implication that circumstances underlying it are likely to change. 1990) (en banc) ( in special circumstances, a statement, correct at the time, may have a forward intent and connotation upon which parties may be expected to rely and [i]f this is a clear meaning, and there is a change
Lowenstein Sandler: Napster?s Swan Song? Feb 01, 2001
Knowing that an injunction would shut Napster down and, perhaps, destroy it, the court did not see that that would cause "great public injury." "We are at a total loss to find any `special circumstances' simply because this case requires us to apply wellestablished doctrines of copyright law to a new technology." Napster's now infamous Internet music directory and sharing software enables its users to swap and share music files stored on their individual computers. The standard file format for
Ober Kaler: Impact of Outpatient PPS to Be Softened Dec 01, 2000
Laughlin: Subrogation In The Uninsured and UnderInsured Motorist ... Dec 01, 2000
The purpose of this article is to address the law relating to subrogation in the context of uninsured and underinsured motorist situations, and suggest some alternative strategies to be employed when faced with these circumstances. Such a strategy is usually not economically viable, but is available in those circumstances when the civil defendant does have assets
Honigman: EPA Rejection of Startup/Shutdown/Malfunction Defense U... Nov 01, 2000
In these special circumstances, the SSM Rules provide that emissions in excess of an emission limit are not a violation. In 1998, over objections from MDEQ and industry groups, including the Michigan Manufacturers Association (MMA), EPA rejected the SSM Rules for the SIP. EPA determined that any emissions that exceed any emission limit is a violation, regardless of mitigating circumstances, such as an SSM event that occurred despite preventative maintenance
Thelen Reid: New York Appeals Court Departs from Economic Loss Rule ... Aug 07, 2000
Faegre & Benson: Tax Implications in Buying a Domain Name May 01, 2000
A description or indication of limitation of practice does not mean that any agency or board has certified such lawyer as a specialist or expert in an indicated field of law practice, nor does it mean that such lawyer is necessarily any more expert or competent than any other lawyer. All potential clients are urged to make their own independent investigation and evaluation of any lawyer being considered
Piper Rudnick: IRS Issues New Regulations Governing Cafeteria Plan Sta... Apr 01, 2000
Ober Kaler: DOJ Issues Internal Guidelines on Bringing Criminal Cha... Apr 01, 2000
Ballard Spahr: NRC Guidance for Use of Risk-Informed Decisionmaking in... Jan 01, 2000
The Staff's proposed guidance was included in SECY-99-246, "Proposed Guidelines for Applying Risk-informed Decisionmaking in License Amendment Reviews." The Commission approved use of these guidelines, but directed that they be expanded to include a better definition of the "special circumstances" that would cause them to be used. "Special circumstances" are further described as involving, in general, situations that would not have been identified or specifically addressed in the development of
Testa: The "Other" Liquidity Option Dec 01, 1999
Absent special circumstances, this would make an asset sale economically inferior to a similarly priced sale of 100% of the outstanding stock. If the company’s regular legal counsel is not experienced in mergers and acquisitions, or if the stockholders anticipate a conflict of interest on the part of its regular counsel, consideration should be given to retaining special counsel
Davis Wright Tremaine: Is Your Investment in China Not Succeeding? Options for... Jul 01, 1999
In most circumstances, the foreign investor's appointed directors and board can pass resolutions necessary for such restructuring. Reduction of registered capital of an FIE is allowed only under special circumstances
Goodwin Procter: Financial Services Alert Jun 29, 1999
However, it is also necessary to consider the special issues raised by a global offering and, for example, to ensure that promotional materials regarding a public offshore offering do not jeopardize the private offering in the United States by giving rise to a general solicitation in the United States. ERISA: Absent special circumstances, there is no restriction upon a pension plan that is subject to ERISA investing in an Offshore Fund, assuming the relevant fiduciaries conclude that the
Morgan Lewis: Disability and Employee Benefit Claims May 10, 1999
Administrators may condition receipt of benefits upon certain circumstances. A decision after review must be provided to the claimant within 60 days after the review request, unless special circumstances warrant an extension
Morgan Lewis: Legislative Update Feb 23, 1999
Special Rule for Multiemployer Plans Eliminated The final regulations remove the special rule that permitted a multiemployer plan to be considered a small employer. The special rule allowed a multiemployer plan with a member that became too large to qualify for the small employer exception to qualify for the exception if the too large employer ceased to contribute to the plan as of February 1 of the current year
Weil: Prepetition Environmental Liability Discharged for Fail... Feb 01, 1999
Except in special circumstances, a creditor that fails to file a proof of claim to assert its prepetition claim before the deadline will be barred from filing its claim thereafter. Accordingly, the deadline for filing proofs of claim is commonly referred to as the "bar date." Since the confirmation of a plan of reorganization discharges the debtor from any debt that arose before the confirmation date, failure to file a timely proof of claim generally results in discharge of the claim without any
Morrison & Foerster: LUEL Briefing: Emergency Regulations Anticipate The Jan... Dec 01, 1998
Upon completion of cleanup under the program, a certification of completion will be awarded that provides that no additional work need be done absent special circumstances. While the emergency regulations were primarily intended as an interim measure to keep the state Superfund program operating, their impact will be felt by not only inactive sites but also active hazardous waste treatment, storage, or disposal facilities currently subject to the federal Resource Conservation and Recovery Act
Epstein Becker & Green: Peter J. Strauss Tells All About Durable Powers of Atto... Aug 01, 1998
The lawyer will make sure that the form includes all special powers for your situation and that the form meets your state's law. SPECIAL CONSIDERATIONS Now that you know the basics, you may have special circumstances to address Property owned in more than one state
Weil: Additional Recent Decisions Of Note Jun 01, 1998
The court held that "absent special circumstances, discovery will be stayed pending determination of a motion to dismiss the complaint." "The policy underlying this rule," the court explained, is that the "expense and time necessary for discovery may be avoided if the motion is granted within a reasonable time." The court identified the following three "special circumstances" that "justify denying a stay of discovery despite the pendency of a motion to dismiss": (1) "where the motion does not
Jones Day: Lifting the Veil - Transparency in China (originally pu... May 31, 1998
The Regulations on Recordal of Regulations and Legal Codes (Recordal Regulations) also issued by the State Council immediately following China's accession to the WTO, require that all regulations and rules adopted by departments of the central government, special economic zones, regional legislatures, and local governments be registered with the Legal Affairs Office of the State Council. The Enquiry Centre is mandated to reply in writing to an inquiry within 30 days, or under special
Jones Day: International Construction Developments ? What Comes Af... Apr 30, 1998
Mutual Waiver of Consequential Damages Under the common law, consequential damages are those damages that arise from the intervention of special circumstances not ordinarily predictable. Further Information This Jones Day Commentaries is a publication of Jones, Day, Reavis and should not be construed as legal advice on any specific facts or circumstances
Jones Day: International Construction Developments ? What Comes Af... Apr 30, 1998
Mutual Waiver of Consequential Damages Under the common law, consequential damages are those damages that arise from the intervention of special circumstances not ordinarily predictable. Further Information This Jones Day Commentaries is a publication of Jones, Day, Reavis and should not be construed as legal advice on any specific facts or circumstances
Chadbourne & Parke: With 'Vertical' Maximum-Price Fixing No Longe... Feb 01, 1998
The rule-of-reason test requires an examination of the competitive effects under the particular circumstances of each specific case to determine whether the practice at issue runs afoul of the federal antitrust laws. Absent circumstances that would violate the "rule-of-reason" standard, the holding of Khan allows maximum-price agreements between sellers and their direct customers
Baker Botts: Law Permits Attorneys' Fees in Patent Infringement ... Dec 01, 1996
However, the law does contain a loophole: for cases that are pending for less than ten years, the new law permits a court to deny the imposition of such costs if the court finds that the government's position was "substantially justified" or that "special circumstances make an award unjust." Disclaimer. Baker Botts L.L.P. All copy and images
Arnold Porter: Heads-Up Report Dec 01, 1996
The government will not be liable for such fees if the case was pending for less than 10 years and either the government's position was "substantially justified" or other special circumstances make an award of fees unjust. This legislation was enacted because the high cost of patent litigation against the Justice Department or a large contractor was thought to be a strong disincentive for small businesses and other qualifying patent owners to pursue valid claims
Arnold Porter: IP News Nov 01, 1996
The government may avoid liability for such fees if its position was "substantially justified" or other special circumstances exist, so long as the infringement suit has lasted less than 10 years. In a contemporaneous case, the Ninth Circuit applied Section 602 to specific factual circumstances and rejected a claim involving figurines copyrighted by DAISA, a Spanish corporation, which were imported by defendant Costco Wholesale Corp. ("Costco")
Testa: New 401(k) Deposit Rules Oct 01, 1996
For larger companies, the final regulation acknowledges that the deposits will take longer, and there is even a procedure for obtaining a limited exception from the 15-day deadline where an employer can show that special circumstances exist. Contact Us | Directions | Site Map | Home © Copyright Testa, Hurwitz & Thibeault, LLP 1996 - 2004
Arnold Porter: Heads-Up Report Oct 01, 1996
They also suggested that the FAR be revised to establish a general time limit on relevant PPI, measured backwards from the date of the solicitation, that may be used for source selection purposes, unless special circumstances stated in the solicitation warrant a different period. Consistent with the statute, the proposed regulations drop special restrictions on giving gratuities to officials involved in procurements
Arnold Porter: Pro Bono Newsletter Sep 01, 1996
The firm has special ties with many important public interest organizations in the community that provide critical legal services to the disadvantaged. "Third , the Court of Appeals concluded, more particularly, that the White House sidewalk and Lafayette Park were a special site for First Amendment activity. These restrictions were not mere "time and place" restrictions which might reasonably be imposed on demonstrators. The Court of Appeals said that one "could not ignore the unique quality of
Jones Day: Regulation FD: Practical Implications and Recommendatio... Aug 31, 1996
Regulation FD is applicable if an issuer discloses material, nonpublic information to analysts, institutional investors, or any other investor under circumstances in which it is "reasonably foreseeable" that the person to whom the information is disclosed will trade the issuer's securities on the basis of that information. To the extent possible, disclosures of nonpublic information -- especially statements that a company believes it will not meet street earnings expectations -- must be made
Testa: Opening New Capital Markets for Canadian Issuers: The M... Apr 01, 1996
MJDS filings with the SEC, absent special circumstances, are not reviewed by the SEC. This can result in significant time savings as regulatory review in Canada can generally be completed within 10 to 15 business days, not the traditional 30 to 45 day SEC review cycle. In most cases, a U.S. offering by a Canadian issuer will result in the issuer becoming subject to reporting under the U.S. Securities Exchange Act
Oblon Spivak: U.S. Legislative Changes To The Lanham Act Under Intern... Jun 01, 1995
Intent not to resume may be inferred from circumstances. Special notice of the requirement for such affidavit shall be attached to each certificate of extension of protection
Laughlin: Subrogation In The Uninsured And Underinsured Situation... Apr 01, 1995
The purpose of this article is to address the law relating to subrogation in the context of uninsured and underinsured situations, and suggest some alternative strategies to be employed when faced with these circumstances. Such a strategy is usually not economically viable, but is available in those circumstances when the civil defendant does have assets
Oblon Spivak: Old Rule Interferences After The Promulgation Of The Ne... Jun 01, 1986
"), these new rules will apply to all interferences declared on or after February 11, 1985, except in special circumstances . . . [discussed in the next section of this paper].[3] Or, to put it the other way, the "Supplementary Information" indicated that the new rules would not be applied to the 335 interferences pending on the effective date of the new rules. Despite the PTO's commendable effort to provide brightline guidance concerning which rules apply to which interferences, a number of
January 10
The proposed rule will apply to both US and non-US listed issuers, but will include provisions to address special circumstances in non-US jurisdictions. These changes are required by Section 301 of the Sarbanes-Oxley Act, which amends section 10A(m)(1) of the 1934 Act
China Law & Policy Newsflash - February 01
Although the Notice unifies the treatment of foreign investments of less than 25% in Chinese companies with that of sino-foreign joint ventures (JVs), it makes clear that special tax treatment is not available to Chinese companies with less than 25% foreign investment. Under special circumstances approved by the approval authorities, the payment deadline may be extended to one year, provided that at least 60% of the entire purchase price is paid within six months
3rd Cir. Treats Punitives & Intangibles: Fear
1990), which established that emotional injury without accompanying physical injury is compensable provided there is "the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious." Because plaintiffs' experts testified that even "one fiber of asbestos could theoretically result in cancer" and because each had been psychologically evaluated for fear, the court found that the Moresi special
January 14
The proposed rule changes will apply to both US and non-US listed issuers, but will include provisions to address special circumstances in non-US jurisdictions. For further information please visit the SEC website at http://www
Labor
Emergency Regulations Anticipate The January 1
Upon completion of cleanup under the program, a certification of completion will be awarded that provides that no additional work need be done absent special circumstances. While the emergency regulations were primarily intended as an interim measure to keep the state Superfund program operating, their impact will be felt by not only inactive sites but also active hazardous waste treatment, storage, or disposal facilities currently subject to the federal Resource Conservation and Recovery Act
Securities Law Alert- July 11
In the course of the discussion, we also address certain special circumstances that may apply to selected situations. Each company and its certifying officers will need to assess their needs based on their particular facts and circumstances, including, among others, what steps were taken in connection with the preparation and review of the covered filings
China Law & Policy Digest - March 01
An Automatic Import License will generally be issued upon the receipt of all necessary documents or, under special circumstances, may be issued within 10 working days. Shanghai has set up a special fund, to be managed by the Enterprise Technology Creativity Service Center, to enhance the acquisition and development of imported technologies
China Law & Policy Digest - June 14
...process may be exempted from this requirement under special circumstances approved by the Shanghai Municipal Government. If a Chinese student who has studied and worked abroad for over eight years, sets up after January 1, 2002 a software or integrated circuit design company in Shanghai having a minimum registered capital of RMB500,000, he or she may apply to the Shanghai government for special funding to the extent of RMB100,000
China Law & Policy Digest - May 23
Anti-dumping investigations will begin May 14, 2003, and should end by May 14, 2004, but may be extended to November 14, 2004 under special circumstances. The notice states that "*ST" should be added before the name of a company's listed shares in the following circumstances: (a) the company has continued to incur losses for two years preceding the notice; (b) the company is required by the China Securities Regulatory Commission ("CSRC") to correct its financial statements due to accounting
Labor
Volume 1
Although these issues are still evolving, employers who have email policies should apply them consistently to union and nonunion activities, and, unless special circumstances exist which would warrant a broader restriction, consider prohibiting nonbusiness use of email only during working time. Food and Drug News An FDA Task Paper (http://www
Employment and Labor Newsletter
: LA Supreme Court Addresses Increased Risk
1990): the plaintiff must prove his claim is not spurious by showing a particular likelihood of genuine and serious mental distress arising from special circumstances. In so doing, the Supreme Court side-stepped the policy issue of whether stigma is compensable in the first place, and if so, under what circumstances
Akin Gump: Supreme Court Addresses Reasonable Accommodation Standa...
Thus, as a summary judgment standard, the Court adopted the rule that a plaintiff must show that the requested accommodation is "reasonable on its face, i.e. ordinarily or in the run of cases." After such a showing by the plaintiff, the defendant employer must show "special (typically case-specific) circumstances that demonstrate undue hardship." The "reasonableness on its face" standard created by the Court appears extremely vague for a summary judgment standard and vests much interpretive
Ballard Spahr: Common Law Marriage in Pennsylvania
Due to special circumstances of this case, neither party has filed an appeal and the time to do so has passed. Most likely, the Pennsylvania Supreme Court will consider this issue in another case, but it may be some time before another case considering the validity of the common law marriage doctrine makes its way to the Supreme Court on appeal
Bulkley: Are You Prepared For The Next Economic Downturn?
Many, especially those in the credit industry, are concerned that abuse of current bankruptcy law needs to be curtailed through legislative changes. Under the Senate reform bill, a debtor with the ability to repay the lesser of 25% or $15,000 of total unsecured claims during the term of a Chapter 13 payment plan would be precluded from filing under Chapter 7 absent a showing of special circumstances
Calton Fields: Products Liability Case of the Month - September 2003
Instead, because this case involved special circumstances (i. e. great distance across international borders, foreign languages and cultures), it was not unreasonable for Schwartz and Musslewhite to rely on the representations of Briones, especially when there was no reason to believe Briones was unworthy of belief
Days: Supreme Court Holds That Disabled Employee Is Ordinaril...
In its holding, the Court created a rebuttable presumption that a seniority system’s rules ordinarily trump the accommodation request. Accordingly, employees “remain[] free to show that special circumstances warrant a finding that the requested ‘accommodation’ is ‘reasonable’ on the particular facts. The Barnett decision makes clear that ordinarily the ADA does not require an employer to assign a disabled employee to a particular position where another employee is entitled to that position under
Gardner Carton: Yet Another Supreme Court ADA Decision:
The Holding The Supreme Court held that a requested accommodation that conflicts with a voluntary, unilaterally-adopted seniority system (as opposed to a collectively bargained system) will be presumed unreasonable unless the employee shows there are "special circumstances." In doing so, the Court reversed the Ninth Circuit's holding that a seniority system should be only one factor in determining whether a requested accommodation is unreasonable. On the other hand, the Court did not adopt US
Gardner Carton: 2001: A Claims Odyssey
An overhaul is required because the Department of Labor is drastically changing the claims procedure rules, especially those for health plans (including medical, dental, vision and prescription drug programs). For an "urgent care" claim, an initial determination must be made as soon as possible, taking into account medical circumstances, but not later than 72 hours after it is received
Goodwin Procter: Employee Benefits Update
In a daily environment and absent special circumstances, it would be advisable for the Insider to complete the filing by the second business day following the transaction request and not from the date the Insider is notified that the transaction was effected. If special circumstances exist where there is a delay between the request and the transaction (e
Goodwin Procter: Law Breakfast Seminar: Recent Legal Developments Affect...
Under these circumstances, the Court held that a reasonable jury could conclude that the real reason that the plaintiff had been laid off was his age. In two recent cases, the Massachusetts Supreme Judicial Court and the United States Supreme Court clarified the circumstances under which a plaintiff may assert a continuing violation
Hinshaw & Culbertson: Breaking Away: Avoiding Malpractice When the Attorney-C...
Malpractice avoidance clearly requires more than a casual understanding of the circumstances that permit or require termination of the relationship and of the precautions that should be taken at termination. Interestingly, the client's right to discharge his attorney at will is a term of the contract implied by law because of the special relationship between the attorney and the client
Latham & Watkins: A Not So Level Playing Field: Fiduciary Duties in Takeo...
Second, each director must perform his or her duties in good faith, in a manner he or she reasonably believes to be in the best interests of the corporation and with such care as an ordinarily prudent person in a like position would use under similar circumstances (the duty of care). Early consultation with the Panel is encouraged where special circumstances exist or where a conflict with the common law duties of the board may have arisen
Lowenstein Sandler: "Automatic Stay Doctrine Applies to Certain Relate...
That benefit is statutorily reserved solely for the debtor and only under special circumstances defined by the bankruptcy courts over recent years. Unusual Circumstances In In re A.H. Robins Co., 788 F.2d 994 (4th Cir
Piper Rudnick: Labor and Employment News--Spring 2002
Piper Rudnick: Increasing Security
Saul Ewing: Caution: Be Careful When You Begin IRA Distributions
You want a document that takes into account your special circumstances. The same is true of planning for IRA distributions
Sidley Austin: Litigation Alert
The court noted that "Kwiatkowski of course is the very opposite of the naive and vulnerable client who is protected by 'special circumstances.' He was a special customer chiefly by reason of his vast wealth, his trading experience, his business sophistication, and his gluttonous appetite for risk. These factors weigh strongly against--and not at all in favor of--heightened duties on the part of the broker (as suitability rules in other contexts imply)" (Footnote to NASD and other rules
Sidley Austin: Litigation Setbacks for the SEC: Securities and Exchang...
Without proof of what constituted a usual or ordinary payment under similar circumstances, the district court erroneously came to two conclusions. Nor is it significant that the corporation filed a Form 8-K after the termination contracts were finalized since this is not an admission of anything, and there was no evidence in the record that other issuers do not make such filings under similar circumstances
Snell & Wilmer: The Nuts and Bolts of Plan Administration
14 Within a reasonable period of time, but not later than within 60 days of the request for review, the plan administrator or other fiduciary must review the request and issue a decision, although the decision may be issued as late as 120 days after the request for review under special circumstances. 15 Special timing rules apply to certain disability determinations
Stroock: SEC Requires Exchange Listing Standards for Audit Commi...
It is important to note that, based on significant input from and dialogue with foreign regulators and foreign issuers and their advisers, several provisions, applicable only to foreign private issuers, have been included that seek to address the special circumstances of particular foreign jurisdictions. These provisions include allowing non-management employees to serve as audit committee members, consistent with "co-determination" and similar requirements in some countries; allowing
Stroock: SEC Proposes Listing Standards Rule and Adopts Investme...
The rule and rule amendments will eliminate the need for funds to obtain individual exemptive orders in circumstances that are not likely to raise the concerns that the Act was intended to address. It is important to note that, based on significant input from and dialogue with foreign regulators and foreign issuers and their advisers, several provisions have been included that seek to address the special circumstances of particular foreign jurisdictions
Stroock: When Does Reliance Give Rise To A Claim? Caiola and de...
...de Kwiatkowski was an experienced currency trader whose "strategy reflected his belief in the long-term strength of the U.S. dollar."7 He opened a "nondiscretionary" margin account with Bear Stearns' "Private Client Services Group," which provided special services to large private investors. The Second Circuit's Application of the "Special Circumstances"Test Courts have held that particular circumstances impose a higher duty on a broker only when they"render the client dependent" for example,a
Stroock: "Eternity Vs. Morgan Guaranty: When Does Reliance ...
A recent decision by a U.S. district court over credit derivatives transactions raises the possibility that the duty of a broker-dealer or other market professional to its customer or counterpart may be expanded based on the market professional's "unique or special expertise" without regard to the other party's level of sophistication. The district court found that: "Morgan's unique or special expertise in swap transactions and emerging market debt . . . as well as allegations that Morgan was
Ulmer & Berne: Sixth Circuit Eases Restrictions On Wearing Union Insig...
The Sixth Circuit held then that, "[W]here an employer enforces a policy that its employees may only wear authorized uniforms in a consistent and non-discriminatory fashion and where those employees have contact with the public, a 'special circumstance' exists as a matter of law which justifies the banning of union buttons." The practical effect of this ruling was to relieve those employers of the burden of establishing on a factual, case-by-case basis that wearing union insignia impacted
Ulmer & Berne: U. S. Supreme Court Favors Employers in Three ADA Cases
However, in the two reasonable accommodation decisions, the court cautioned employers that there may be circumstances when they might not be the prevailing party. The court held that a non-unionized employer's seniority policy ordinarily prevails over the reasonable accommodation request of an employee with a disability unless the employee can show special circumstances that make an exception to the seniority policy reasonable in the particular case
Ulmer & Berne: What Should An Employer Do When Outsiders Use An Employ...
...by George S. Crisci Employment Law Letter Fall 1999 Electronic mail use, especially among larger companies, has become the primary business communication tool, outpacing telephone use and face-to-face meetings. For decades, the rule has been that: employers may prohibit union solicitation by employees during working time, but prohibiting union solicitation by employees outside of working time, but on company property, is presumptively discriminatory unless special circumstances make such
Vandeventer Black: Delay Due to Steel and Other Commodity Shortages or Pri...
Therefore, if a supplier enters into a fixed price contract to provide steel or other commodity it will probably be required to honor the contract regardless of shortages or price fluctuations, unless special circumstances exist. One such special circumstance is the application of the Defense Production Act (DPA), 50 U.S.C. app
Weil: Relationship between the Bankruptcy Code and Nonbankrup...
The court held that a finding of special circumstances to confirm a plan of reorganization that overturns a stipulation modifying the automatic stay is only required if the stipulation expressly states that it will bind the parties and the court in any future reorganization. Atalanta Corp. v. Allen (In re Allen), 300 F.3d 1055 (9th Cir
Weil: Leasing State-Owned Property in the Czech Republic
In exceptional circumstances and at its discretion, the Ministry of Finance can issue exemptions from the maximum five year lease period, allowing the initial lease term to be for a period longer than five years. However, under special circumstances, the Ministry of Finance can grant an exemption whereby an easement may also be established for other purposes
Weil: The Doctrine of Necessity and the Kmart Decision
Bankruptcy courts have articulated under the doctrine of necessity those circumstances in which payments to prepetition vendors/suppliers will be authorized prior to confirmation of a chapter 11 plan. Nevertheless, prepetition debts of the same class often have been treated differently in reorganization cases when a court was confronted with special circumstances, particularly when the debtor s survival was at stake
White & Case: 2002 White & Case Global Privacy Law Survey
The information and analysis found here were assembled and prepared by White lawyers around the world with specialized knowledge of the privacy laws in the specific jurisdictions that are included. China is the only jurisdiction surveyed whose privacy law, existing or proposed, is primarily aimed at traditional privacy concerns, however an important exception should be noted for the special economic zone of Shenzen, where data protection regulations were put in place in 2001
White and Williams: Labor and Employment: Seniority Can Trump Disability
1516 (April 29, 2002), the Court held that except in special circumstances, the ADA does not give a worker with a disability a special chance of obtaining an accommodation that would violate a seniority system. Still, the Barnett opinion provides that the disabled employee can try to present evidence of special circumstances that would make a seniority rule exception reasonable in the particular case
White and Williams: Delaware Law Update: Delaware Bans Court Reporter Deals
Williams Mullen: Frequently Asked Trademark Questions
...g. "loud" for use with music) can only be trademarks under special circumstances. Generally these terms are available for all to use
Winston Strawn: Seniority Systems Are Not Per Se Bar to Reassignment Un...
Emergency Regulations Anticipate The January 1
Upon completion of cleanup under the program, a certification of completion will be awarded that provides that no additional work need be done absent special circumstances. While the emergency regulations were primarily intended as an interim measure to keep the state Superfund program operating, their impact will be felt by not only inactive sites but also active hazardous waste treatment, storage, or disposal facilities currently subject to the federal Resource Conservation and Recovery Act
Volume 1
Although these issues are still evolving, employers who have email policies should apply them consistently to union and nonunion activities, and, unless special circumstances exist which would warrant a broader restriction, consider prohibiting nonbusiness use of email only during working time. Food and Drug News An FDA Task Paper (http://www
HIPAA Nondiscrimination Rules Clarified
This is a facts and circumstances test. If a shortfall in a COBRA premium payment is an insignificant shortfall, the plan must handle the payment according to the special rules for such shortfalls added by the 1999 final regulations
05-01-01: IP Update
Consequently, the court held that Schoell had not make a showing of a genuine issue for trial: "The doctrine of equivalents is not a talisman that entitles a patentee to a jury trial on the basis of suspicion; it is a limited remedy available in special circumstances, the evidence for which is the responsibility of the proponent." Patents/Validity Extrinsic Evidence May Be Used to Show "Missing" Features Is Inherent in Anticipatory Prior Art Reference By Michael Switzer The US Court of Appeals
05-01-01: IP Update
Consequently, the court held that Schoell had not make a showing of a genuine issue for trial: "The doctrine of equivalents is not a talisman that entitles a patentee to a jury trial on the basis of suspicion; it is a limited remedy available in special circumstances, the evidence for which is the responsibility of the proponent." Patents/Validity Extrinsic Evidence May Be Used to Show "Missing" Features Is Inherent in Anticipatory Prior Art Reference By Michael Switzer The US Court of Appeals
: %20Asset%20Tracing%20and%20Fraud.pdf
: New Minimum Distribution Rules: Easier
This is a facts and circumstances test. If a shortfall in a COBRA premium payment is an insignificant shortfall, the plan must handle the payment according to the special rules for such shortfalls added by the 1999 final regulations
: C&P Report: Insurance Reinsurance Regulation
India's special circumstances suggest a moderate approach to deregulation. This approach allows liquidators to devise an approach best suited to the circumstances
: On Your Mark
Courts may decline to enforce the "first filed" rule when special circumstances exist such as if the first suit is an "improper anticipatory filing" or smacks of forum-shopping. Also, under the forum non conveniens doctrine, courts may dismiss or transfer a case under certain circumstances
Akin Gump: Supreme Court Addresses Reasonable Accommodation Standa...
Thus, as a summary judgment standard, the Court adopted the rule that a plaintiff must show that the requested accommodation is "reasonable on its face, i.e. ordinarily or in the run of cases." After such a showing by the plaintiff, the defendant employer must show "special (typically case-specific) circumstances that demonstrate undue hardship." The "reasonableness on its face" standard created by the Court appears extremely vague for a summary judgment standard and vests much interpretive
Akin Gump: The Employment Law Journal
He is past Chairman of the Labor Law Section of the State Bar of Texas, and is certified in Labor and Employment Law by the Texas Board of Legal Specialization. Mr. Manitzas served on the original pilot program establishing the Texas Board of Legal Specialization, and was a member of the Labor Law Advisory Commission to the Board of Legal Specialization from 1972 to 1986
Calton Fields: Products Liability Case of the Month - September 2003
Instead, because this case involved special circumstances (i. e. great distance across international borders, foreign languages and cultures), it was not unreasonable for Schwartz and Musslewhite to rely on the representations of Briones, especially when there was no reason to believe Briones was unworthy of belief
Fried Frank: Timetables for the Performance of Tender Offers in Fran...
The AMF regulations provide a simplified procedure for tender offers in special circumstances; such as, an offer by a person already owning a majority of the target's. The sale of control in the target is not conditional on special regulatory approvals; such as those that would apply to the sale of a bank, an insurance company or a company that owns a newspaper, radio or television station
Gardner Carton: Yet Another Supreme Court ADA Decision:
The Holding The Supreme Court held that a requested accommodation that conflicts with a voluntary, unilaterally-adopted seniority system (as opposed to a collectively bargained system) will be presumed unreasonable unless the employee shows there are "special circumstances." In doing so, the Court reversed the Ninth Circuit's holding that a seniority system should be only one factor in determining whether a requested accommodation is unreasonable. On the other hand, the Court did not adopt US
Gardner Carton: 2001: A Claims Odyssey
An overhaul is required because the Department of Labor is drastically changing the claims procedure rules, especially those for health plans (including medical, dental, vision and prescription drug programs). For an "urgent care" claim, an initial determination must be made as soon as possible, taking into account medical circumstances, but not later than 72 hours after it is received
Gardner Carton: 2002: The Claims Odyssey Continues
An overhaul is required because the Department of Labor ("DOL") is drastically changing the claims procedure rules, especially those for health plans (including medical, dental, vision and prescription drug programs). For an "urgent care" claim, an initial determination must be made as soon as possible, taking into account medical circumstances, but not later than 72 hours after it is received
Goodwin Procter: Law Breakfast Seminar: Recent Legal Developments Affect...
Under these circumstances, the Court held that a reasonable jury could conclude that the real reason that the plaintiff had been laid off was his age. In two recent cases, the Massachusetts Supreme Judicial Court and the United States Supreme Court clarified the circumstances under which a plaintiff may assert a continuing violation
Latham & Watkins: A Not So Level Playing Field: Fiduciary Duties in Takeo...
Second, each director must perform his or her duties in good faith, in a manner he or she reasonably believes to be in the best interests of the corporation and with such care as an ordinarily prudent person in a like position would use under similar circumstances (the duty of care). Early consultation with the Panel is encouraged where special circumstances exist or where a conflict with the common law duties of the board may have arisen
O'Melveny & Myers: A New Listed Company Law: CSRC Guidelines on Articles o...
14 While not expanding the circumstances under which a company may repurchase its shares, the CSRC Articles provide for the permitted modes of repurchase as follows: (a) making a repurchase offer to all shareholders in proportion to their respective shareholdings; (b) purchasing its shares in the open market; and (c) other means approved by laws, regulations and the state securities authorities. Under the CSRC Articles, the board of supervisors or the shareholders may make a written request to
Poyner & Spruill: Local Government Counsel Newsletter
Although local land use laws vary, most local governments require wireless service providers to obtain a special use permit or conditional use permit ("use permit") before placing and constructing any cellular tower. However, this is difficult especially when the local standard and the federal standard requiring "substantial evidence" and a written decision are virtually interchangeable
Quinn Emanuel: Download the entire newsletter in PDF format
Theseso-called"strike suits" have increasingly plagued corporations, especially in high tech industries, over the past several years. ABA Recognizes Reasonable Expectation of Privacy in Lawyer-Client E-Mail In a recent ethics opinion, theAmerican Bar Association Committee on Ethics and Professional Responsibility determined that, barring special circumstances, unencrypted e-mail constitutes an acceptable means of lawyer-client communication
Snell & Wilmer: The Nuts and Bolts of Plan Administration
14 Within a reasonable period of time, but not later than within 60 days of the request for review, the plan administrator or other fiduciary must review the request and issue a decision, although the decision may be issued as late as 120 days after the request for review under special circumstances. 15 Special timing rules apply to certain disability determinations
Stroock: SEC Requires Exchange Listing Standards for Audit Commi...
It is important to note that, based on significant input from and dialogue with foreign regulators and foreign issuers and their advisers, several provisions, applicable only to foreign private issuers, have been included that seek to address the special circumstances of particular foreign jurisdictions. These provisions include allowing non-management employees to serve as audit committee members, consistent with "co-determination" and similar requirements in some countries; allowing
Stroock: SEC Proposes Listing Standards Rule and Adopts Investme...
The rule and rule amendments will eliminate the need for funds to obtain individual exemptive orders in circumstances that are not likely to raise the concerns that the Act was intended to address. It is important to note that, based on significant input from and dialogue with foreign regulators and foreign issuers and their advisers, several provisions have been included that seek to address the special circumstances of particular foreign jurisdictions
Stroock: When Does Reliance Give Rise To A Claim? Caiola and de...
...de Kwiatkowski was an experienced currency trader whose "strategy reflected his belief in the long-term strength of the U.S. dollar."7 He opened a "nondiscretionary" margin account with Bear Stearns' "Private Client Services Group," which provided special services to large private investors. The Second Circuit's Application of the "Special Circumstances"Test Courts have held that particular circumstances impose a higher duty on a broker only when they"render the client dependent" for example,a
Stroock: "Eternity Vs. Morgan Guaranty: When Does Reliance ...
A recent decision by a U.S. district court over credit derivatives transactions raises the possibility that the duty of a broker-dealer or other market professional to its customer or counterpart may be expanded based on the market professional's "unique or special expertise" without regard to the other party's level of sophistication. The district court found that: "Morgan's unique or special expertise in swap transactions and emerging market debt . . . as well as allegations that Morgan was
Vandeventer Black: Delay Due to Steel and Other Commodity Shortages or Pri...
Therefore, if a supplier enters into a fixed price contract to provide steel or other commodity it will probably be required to honor the contract regardless of shortages or price fluctuations, unless special circumstances exist. One such special circumstance is the application of the Defense Production Act (DPA), 50 U.S.C. app
Weil: Relationship between the Bankruptcy Code and Nonbankrup...
The court held that a finding of special circumstances to confirm a plan of reorganization that overturns a stipulation modifying the automatic stay is only required if the stipulation expressly states that it will bind the parties and the court in any future reorganization. Atalanta Corp. v. Allen (In re Allen), 300 F.3d 1055 (9th Cir
Weil: Leasing State-Owned Property in the Czech Republic
In exceptional circumstances and at its discretion, the Ministry of Finance can issue exemptions from the maximum five year lease period, allowing the initial lease term to be for a period longer than five years. However, under special circumstances, the Ministry of Finance can grant an exemption whereby an easement may also be established for other purposes
Weil: The Doctrine of Necessity and the Kmart Decision
Bankruptcy courts have articulated under the doctrine of necessity those circumstances in which payments to prepetition vendors/suppliers will be authorized prior to confirmation of a chapter 11 plan. Nevertheless, prepetition debts of the same class often have been treated differently in reorganization cases when a court was confronted with special circumstances, particularly when the debtor s survival was at stake
White & Case: 2002 White & Case Global Privacy Law Survey
White and Williams: Labor and Employment: Seniority Can Trump Disability
1516 (April 29, 2002), the Court held that except in special circumstances, the ADA does not give a worker with a disability a special chance of obtaining an accommodation that would violate a seniority system. Still, the Barnett opinion provides that the disabled employee can try to present evidence of special circumstances that would make a seniority rule exception reasonable in the particular case
Williams Mullen: Frequently Asked Trademark Questions
...g. "loud" for use with music) can only be trademarks under special circumstances. Generally these terms are available for all to use
Winston Strawn: Seniority Systems Are Not Per Se Bar to Reassignment Un...
Winston Strawn: Final Regulations Promulgated Under Section 467 of the ...
January 10
The proposed rule will apply to both US and non-US listed issuers, but will include provisions to address special circumstances in non-US jurisdictions. These changes are required by Section 301 of the Sarbanes-Oxley Act, which amends section 10A(m)(1) of the 1934 Act
January 14
The proposed rule changes will apply to both US and non-US listed issuers, but will include provisions to address special circumstances in non-US jurisdictions. For further information please visit the SEC website at http://www
Volume 1
China Law & Policy Digest - September 05
Individuals are only allowed to leave China with Cash over USD 10,000 under certain special circumstances and must also obtain a Certificate. 3
HIPAA Nondiscrimination Rules Clarified
This is a facts and circumstances test. If a shortfall in a COBRA premium payment is an insignificant shortfall, the plan must handle the payment according to the special rules for such shortfalls added by the 1999 final regulations
05-01-01: IP Update
Consequently, the court held that Schoell had not make a showing of a genuine issue for trial: "The doctrine of equivalents is not a talisman that entitles a patentee to a jury trial on the basis of suspicion; it is a limited remedy available in special circumstances, the evidence for which is the responsibility of the proponent." Patents/Validity Extrinsic Evidence May Be Used to Show "Missing" Features Is Inherent in Anticipatory Prior Art Reference By Michael Switzer The US Court of Appeals
05-01-01: IP Update
Consequently, the court held that Schoell had not make a showing of a genuine issue for trial: "The doctrine of equivalents is not a talisman that entitles a patentee to a jury trial on the basis of suspicion; it is a limited remedy available in special circumstances, the evidence for which is the responsibility of the proponent." Patents/Validity Extrinsic Evidence May Be Used to Show "Missing" Features Is Inherent in Anticipatory Prior Art Reference By Michael Switzer The US Court of Appeals
: Congress Passes IDEA of 2004
Special education decision-makers and counsel will need to better understand curricular requirements and see that Individualized Education Programs (IEPs) and special education offerings are directly linked to state standards and are "scientificallybased" and peer-reviewed. Highly Qualified New IDEA "clarified" the meaning of NCLB's highly qualified requirements as applied to special educators
: %20Asset%20Tracing%20and%20Fraud.pdf
: New Minimum Distribution Rules: Easier
This is a facts and circumstances test. If a shortfall in a COBRA premium payment is an insignificant shortfall, the plan must handle the payment according to the special rules for such shortfalls added by the 1999 final regulations
: C&P Report: Insurance Reinsurance Regulation
India's special circumstances suggest a moderate approach to deregulation. This approach allows liquidators to devise an approach best suited to the circumstances
: On Your Mark
Courts may decline to enforce the "first filed" rule when special circumstances exist such as if the first suit is an "improper anticipatory filing" or smacks of forum-shopping. Also, under the forum non conveniens doctrine, courts may dismiss or transfer a case under certain circumstances
Akin Gump: Supreme Court Addresses Reasonable Accommodation Standa...
Thus, as a summary judgment standard, the Court adopted the rule that a plaintiff must show that the requested accommodation is "reasonable on its face, i.e. ordinarily or in the run of cases." After such a showing by the plaintiff, the defendant employer must show "special (typically case-specific) circumstances that demonstrate undue hardship." The "reasonableness on its face" standard created by the Court appears extremely vague for a summary judgment standard and vests much interpretive
Akin Gump: The Employment Law Journal
He is past Chairman of the Labor Law Section of the State Bar of Texas, and is certified in Labor and Employment Law by the Texas Board of Legal Specialization. Mr. Manitzas served on the original pilot program establishing the Texas Board of Legal Specialization, and was a member of the Labor Law Advisory Commission to the Board of Legal Specialization from 1972 to 1986
Ballard Spahr: Common Law Marriage in Pennsylvania
Due to special circumstances of this case, neither party has filed an appeal and the time to do so has passed. Most likely, the Pennsylvania Supreme Court will consider this issue in another case, but it may be some time before another case considering the validity of the common law marriage doctrine makes its way to the Supreme Court on appeal
Calton Fields: Products Liability Case of the Month - September 2003
Instead, because this case involved special circumstances (i. e. great distance across international borders, foreign languages and cultures), it was not unreasonable for Schwartz and Musslewhite to rely on the representations of Briones, especially when there was no reason to believe Briones was unworthy of belief
Fried Frank: Timetables for the Performance of Tender Offers in Fran...
The AMF regulations provide a simplified procedure for tender offers in special circumstances. The sale of control in the target is not conditional on special regulatory approvals; such as those that would apply to the sale of a bank, an insurance company or a company that owns a newspaper, radio or television station
Gardner Carton: Yet Another Supreme Court ADA Decision:
The Holding The Supreme Court held that a requested accommodation that conflicts with a voluntary, unilaterally-adopted seniority system (as opposed to a collectively bargained system) will be presumed unreasonable unless the employee shows there are "special circumstances." In doing so, the Court reversed the Ninth Circuit's holding that a seniority system should be only one factor in determining whether a requested accommodation is unreasonable. On the other hand, the Court did not adopt US
Gardner Carton: 2001: A Claims Odyssey
An overhaul is required because the Department of Labor is drastically changing the claims procedure rules, especially those for health plans (including medical, dental, vision and prescription drug programs). For an "urgent care" claim, an initial determination must be made as soon as possible, taking into account medical circumstances, but not later than 72 hours after it is received
Gardner Carton: 2002: The Claims Odyssey Continues
An overhaul is required because the Department of Labor ("DOL") is drastically changing the claims procedure rules, especially those for health plans (including medical, dental, vision and prescription drug programs). For an "urgent care" claim, an initial determination must be made as soon as possible, taking into account medical circumstances, but not later than 72 hours after it is received
Goodwin Procter: Law Breakfast Seminar: Recent Legal Developments Affect...
Under these circumstances, the Court held that a reasonable jury could conclude that the real reason that the plaintiff had been laid off was his age. In two recent cases, the Massachusetts Supreme Judicial Court and the United States Supreme Court clarified the circumstances under which a plaintiff may assert a continuing violation
Latham & Watkins: A Not So Level Playing Field: Fiduciary Duties in Takeo...
Second, each director must perform his or her duties in good faith, in a manner he or she reasonably believes to be in the best interests of the corporation and with such care as an ordinarily prudent person in a like position would use under similar circumstances (the duty of care). Early consultation with the Panel is encouraged where special circumstances exist or where a conflict with the common law duties of the board may have arisen
O'Melveny & Myers: A New Listed Company Law: CSRC Guidelines on Articles o...
14 While not expanding the circumstances under which a company may repurchase its shares, the CSRC Articles provide for the permitted modes of repurchase as follows: (a) making a repurchase offer to all shareholders in proportion to their respective shareholdings; (b) purchasing its shares in the open market; and (c) other means approved by laws, regulations and the state securities authorities. Under the CSRC Articles, the board of supervisors or the shareholders may make a written request to
Poyner & Spruill: Local Government Counsel Newsletter
Although local land use laws vary, most local governments require wireless service providers to obtain a special use permit or conditional use permit ("use permit") before placing and constructing any cellular tower. However, this is difficult especially when the local standard and the federal standard requiring "substantial evidence" and a written decision are virtually interchangeable
Quinn Emanuel: Download the entire newsletter in PDF format
Theseso-called"strike suits" have increasingly plagued corporations, especially in high tech industries, over the past several years. ABA Recognizes Reasonable Expectation of Privacy in Lawyer-Client E-Mail In a recent ethics opinion, theAmerican Bar Association Committee on Ethics and Professional Responsibility determined that, barring special circumstances, unencrypted e-mail constitutes an acceptable means of lawyer-client communication
Sidley Austin: Selected 2002 and 2001 Developments in US Corporate and...
FASB to Propose New Accounting Rules for Special Purpose Entities. FASB plans to propose new accounting standards for business consolidations, including new standards that would govern accounting treatment of Special Purpose Entities ("SPE"), in the second quarter of 2002
Snell & Wilmer: The Nuts and Bolts of Plan Administration
14 Within a reasonable period of time, but not later than within 60 days of the request for review, the plan administrator or other fiduciary must review the request and issue a decision, although the decision may be issued as late as 120 days after the request for review under special circumstances. 15 Special timing rules apply to certain disability determinations
Stroock: SEC Requires Exchange Listing Standards for Audit Commi...
It is important to note that, based on significant input from and dialogue with foreign regulators and foreign issuers and their advisers, several provisions, applicable only to foreign private issuers, have been included that seek to address the special circumstances of particular foreign jurisdictions. These provisions include allowing non-management employees to serve as audit committee members, consistent with "co-determination" and similar requirements in some countries; allowing
Stroock: SEC Proposes Listing Standards Rule and Adopts Investme...
The rule and rule amendments will eliminate the need for funds to obtain individual exemptive orders in circumstances that are not likely to raise the concerns that the Act was intended to address. It is important to note that, based on significant input from and dialogue with foreign regulators and foreign issuers and their advisers, several provisions have been included that seek to address the special circumstances of particular foreign jurisdictions
Stroock: When Does Reliance Give Rise To A Claim? Caiola and de...
...de Kwiatkowski was an experienced currency trader whose "strategy reflected his belief in the long-term strength of the U.S. dollar."7 He opened a "nondiscretionary" margin account with Bear Stearns' "Private Client Services Group," which provided special services to large private investors. The Second Circuit's Application of the "Special Circumstances"Test Courts have held that particular circumstances impose a higher duty on a broker only when they"render the client dependent" for example,a
Stroock: "Eternity Vs. Morgan Guaranty: When Does Reliance ...
A recent decision by a U.S. district court over credit derivatives transactions raises the possibility that the duty of a broker-dealer or other market professional to its customer or counterpart may be expanded based on the market professional's "unique or special expertise" without regard to the other party's level of sophistication. The district court found that: "Morgan's unique or special expertise in swap transactions and emerging market debt . . . as well as allegations that Morgan was
Vandeventer Black: Delay Due to Steel and Other Commodity Shortages or Pri...
Therefore, if a supplier enters into a fixed price contract to provide steel or other commodity it will probably be required to honor the contract regardless of shortages or price fluctuations, unless special circumstances exist. One such special circumstance is the application of the Defense Production Act (DPA), 50 U.S.C. app
Weil: Relationship between the Bankruptcy Code and Nonbankrup...
The court held that a finding of special circumstances to confirm a plan of reorganization that overturns a stipulation modifying the automatic stay is only required if the stipulation expressly states that it will bind the parties and the court in any future reorganization. Atalanta Corp. v. Allen (In re Allen), 300 F.3d 1055 (9th Cir
Weil: Leasing State-Owned Property in the Czech Republic
In exceptional circumstances and at its discretion, the Ministry of Finance can issue exemptions from the maximum five year lease period, allowing the initial lease term to be for a period longer than five years. However, under special circumstances, the Ministry of Finance can grant an exemption whereby an easement may also be established for other purposes
Weil: The Doctrine of Necessity and the Kmart Decision
Bankruptcy courts have articulated under the doctrine of necessity those circumstances in which payments to prepetition vendors/suppliers will be authorized prior to confirmation of a chapter 11 plan. Nevertheless, prepetition debts of the same class often have been treated differently in reorganization cases when a court was confronted with special circumstances, particularly when the debtor s survival was at stake
White & Case: 2002 White & Case Global Privacy Law Survey
White and Williams: Labor and Employment: Seniority Can Trump Disability
1516 (April 29, 2002), the Court held that except in special circumstances, the ADA does not give a worker with a disability a special chance of obtaining an accommodation that would violate a seniority system. Still, the Barnett opinion provides that the disabled employee can try to present evidence of special circumstances that would make a seniority rule exception reasonable in the particular case
Williams Mullen: Frequently Asked Trademark Questions
...g. "loud" for use with music) can only be trademarks under special circumstances. Generally these terms are available for all to use
Winston Strawn: Seniority Systems Are Not Per Se Bar to Reassignment Un...
Winston Strawn: Final Regulations Promulgated Under Section 467 of the ...
January 10
The proposed rule will apply to both US and non-US listed issuers, but will include provisions to address special circumstances in non-US jurisdictions. These changes are required by Section 301 of the Sarbanes-Oxley Act, which amends section 10A(m)(1) of the 1934 Act
3rd Cir. Treats Punitives & Intangibles: Fear
1990), which established that emotional injury without accompanying physical injury is compensable provided there is "the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious." Because plaintiffs' experts testified that even "one fiber of asbestos could theoretically result in cancer" and because each had been psychologically evaluated for fear, the court found that the Moresi special
January 14
The proposed rule changes will apply to both US and non-US listed issuers, but will include provisions to address special circumstances in non-US jurisdictions. For further information please visit the SEC website at http://www
Securities Law Alert- July 11
In the course of the discussion, we also address certain special circumstances that may apply to selected situations. Each company and its certifying officers will need to assess their needs based on their particular facts and circumstances, including, among others, what steps were taken in connection with the preparation and review of the covered filings
Corporate Alert - March 23
In its Report,the SEC specifically noted that it is not intending to change the way issuers engage in merger,or other contractual negotiations, or to alter existing due diligence obligations or practices or to suggest, absent special circumstances (such as provisions intended to create third party beneficiaries), that provisions such as representations and covenants in such agreements are binding on or intended to benefit third parties. Notwithstanding this disclaimer, the SEC noted that it will
Insurance Class Action Defense Alert - August 25
The Supreme Court's test requires courts to look at the particular factual circumstances of the putative class members and to inquire whether resolving the claims (including defenses) of the named plaintiffs will thereby resolve the claims of the other putative class members. If the record submitted demonstrates that liability or damage issues must be resolved class member by class member due to varying factual circumstances, then class certification must be denied
China Law & Policy Digest - September 05
Individuals are only allowed to leave China with Cash over USD 10,000 under certain special circumstances and must also obtain a Certificate. 3
China Law & Policy Digest - January 15
Import licenses will generally be issued within three (3) working days or, under special circumstances, within ten (10) working days. The measures also provide special tariff and taxation rules for goods imported to replace or remedy goods that have already been imported; goods imported under leasing contracts; goods imported to be
HIPAA Nondiscrimination Rules Clarified
This is a facts and circumstances test. If a shortfall in a COBRA premium payment is an insignificant shortfall, the plan must handle the payment according to the special rules for such shortfalls added by the 1999 final regulations
05-01-01: IP Update
Consequently, the court held that Schoell had not make a showing of a genuine issue for trial: "The doctrine of equivalents is not a talisman that entitles a patentee to a jury trial on the basis of suspicion; it is a limited remedy available in special circumstances, the evidence for which is the responsibility of the proponent." Patents/Validity Extrinsic Evidence May Be Used to Show "Missing" Features Is Inherent in Anticipatory Prior Art Reference By Michael Switzer The US Court of Appeals
05-01-01: IP Update
Consequently, the court held that Schoell had not make a showing of a genuine issue for trial: "The doctrine of equivalents is not a talisman that entitles a patentee to a jury trial on the basis of suspicion; it is a limited remedy available in special circumstances, the evidence for which is the responsibility of the proponent." Patents/Validity Extrinsic Evidence May Be Used to Show "Missing" Features Is Inherent in Anticipatory Prior Art Reference By Michael Switzer The US Court of Appeals
: Congress Passes IDEA of 2004
Special education decision-makers and counsel will need to better understand curricular requirements and see that Individualized Education Programs (IEPs) and special education offerings are directly linked to state standards and are "scientificallybased" and peer-reviewed. Highly Qualified New IDEA "clarified" the meaning of NCLB's highly qualified requirements as applied to special educators
: %20Asset%20Tracing%20and%20Fraud.pdf
: New Minimum Distribution Rules: Easier
This is a facts and circumstances test. If a shortfall in a COBRA premium payment is an insignificant shortfall, the plan must handle the payment according to the special rules for such shortfalls added by the 1999 final regulations
: C&P Report: Insurance Reinsurance Regulation
India's special circumstances suggest a moderate approach to deregulation. This approach allows liquidators to devise an approach best suited to the circumstances
Akin Gump: Supreme Court Addresses Reasonable Accommodation Standa...
Thus, as a summary judgment standard, the Court adopted the rule that a plaintiff must show that the requested accommodation is "reasonable on its face, i.e. ordinarily or in the run of cases." After such a showing by the plaintiff, the defendant employer must show "special (typically case-specific) circumstances that demonstrate undue hardship." The "reasonableness on its face" standard created by the Court appears extremely vague for a summary judgment standard and vests much interpretive
Ballard Spahr: Common Law Marriage in Pennsylvania
Due to special circumstances of this case, neither party has filed an appeal and the time to do so has passed. Most likely, the Pennsylvania Supreme Court will consider this issue in another case, but it may be some time before another case considering the validity of the common law marriage doctrine makes its way to the Supreme Court on appeal
Calton Fields: Products Liability Case of the Month - September 2003
Gardner Carton: Yet Another Supreme Court ADA Decision:
Gardner Carton: 2001: A Claims Odyssey
Gardner Carton: 2002: The Claims Odyssey Continues
Goodwin Procter: Law Breakfast Seminar: Recent Legal Developments Affect...
Under these circumstances, the Court held that a reasonable jury could conclude that the real reason that the plaintiff had been laid off was his age. In two recent cases, the Massachusetts Supreme Judicial Court and the United States Supreme Court clarified the circumstances under which a plaintiff may assert a continuing violation
Latham & Watkins: A Not So Level Playing Field: Fiduciary Duties in Takeo...
Second, each director must perform his or her duties in good faith, in a manner he or she reasonably believes to be in the best interests of the corporation and with such care as an ordinarily prudent person in a like position would use under similar circumstances (the duty of care). Early consultation with the Panel is encouraged where special circumstances exist or where a conflict with the common law duties of the board may have arisen
Lowenstein Sandler: "Automatic Stay Doctrine Applies to Certain Relate...
That benefit is statutorily reserved solely for the debtor and only under special circumstances defined by the bankruptcy courts over recent years. Unusual Circumstances In In re A.H. Robins Co., 788 F.2d 994 (4th Cir
Sidley Austin: Litigation Alert
The court noted that "Kwiatkowski of course is the very opposite of the naive and vulnerable client who is protected by 'special circumstances.' He was a special customer chiefly by reason of his vast wealth, his trading experience, his business sophistication, and his gluttonous appetite for risk. These factors weigh strongly against--and not at all in favor of--heightened duties on the part of the broker (as suitability rules in other contexts imply)" (Footnote to NASD and other rules
Sidley Austin: Selected 2002 and 2001 Developments in US Corporate and...
FASB to Propose New Accounting Rules for Special Purpose Entities. FASB plans to propose new accounting standards for business consolidations, including new standards that would govern accounting treatment of Special Purpose Entities ("SPE"), in the second quarter of 2002
Snell & Wilmer: The Nuts and Bolts of Plan Administration
14 Within a reasonable period of time, but not later than within 60 days of the request for review, the plan administrator or other fiduciary must review the request and issue a decision, although the decision may be issued as late as 120 days after the request for review under special circumstances. 15 Special timing rules apply to certain disability determinations
Stroock: SEC Requires Exchange Listing Standards for Audit Commi...
It is important to note that, based on significant input from and dialogue with foreign regulators and foreign issuers and their advisers, several provisions, applicable only to foreign private issuers, have been included that seek to address the special circumstances of particular foreign jurisdictions. These provisions include allowing non-management employees to serve as audit committee members, consistent with "co-determination" and similar requirements in some countries; allowing
Stroock: SEC Proposes Listing Standards Rule and Adopts Investme...
The rule and rule amendments will eliminate the need for funds to obtain individual exemptive orders in circumstances that are not likely to raise the concerns that the Act was intended to address. It is important to note that, based on significant input from and dialogue with foreign regulators and foreign issuers and their advisers, several provisions have been included that seek to address the special circumstances of particular foreign jurisdictions
Stroock: When Does Reliance Give Rise To A Claim? Caiola and de...
...de Kwiatkowski was an experienced currency trader whose "strategy reflected his belief in the long-term strength of the U.S. dollar."7 He opened a "nondiscretionary" margin account with Bear Stearns' "Private Client Services Group," which provided special services to large private investors. The Second Circuit's Application of the "Special Circumstances"Test Courts have held that particular circumstances impose a higher duty on a broker only when they"render the client dependent" for example,a
Stroock: "Eternity Vs. Morgan Guaranty: When Does Reliance ...
A recent decision by a U.S. district court over credit derivatives transactions raises the possibility that the duty of a broker-dealer or other market professional to its customer or counterpart may be expanded based on the market professional's "unique or special expertise" without regard to the other party's level of sophistication. The district court found that: "Morgan's unique or special expertise in swap transactions and emerging market debt . . . as well as allegations that Morgan was
Vandeventer Black: Delay Due to Steel and Other Commodity Shortages or Pri...
Therefore, if a supplier enters into a fixed price contract to provide steel or other commodity it will probably be required to honor the contract regardless of shortages or price fluctuations, unless special circumstances exist. One such special circumstance is the application of the Defense Production Act (DPA), 50 U.S.C. app
Weil: Leasing State-Owned Property in the Czech Republic
In exceptional circumstances and at its discretion, the Ministry of Finance can issue exemptions from the maximum five year lease period, allowing the initial lease term to be for a period longer than five years. However, under special circumstances, the Ministry of Finance can grant an exemption whereby an easement may also be established for other purposes
Weil: Relationship between the Bankruptcy Code and Nonbankrup...
The court held that a finding of special circumstances to confirm a plan of reorganization that overturns a stipulation modifying the automatic stay is only required if the stipulation expressly states that it will bind the parties and the court in any future reorganization. Atalanta Corp. v. Allen (In re Allen), 300 F.3d 1055 (9th Cir
Weil: The Doctrine of Necessity and the Kmart Decision
Bankruptcy courts have articulated under the doctrine of necessity those circumstances in which payments to prepetition vendors/suppliers will be authorized prior to confirmation of a chapter 11 plan. Nevertheless, prepetition debts of the same class often have been treated differently in reorganization cases when a court was confronted with special circumstances, particularly when the debtor s survival was at stake
White & Case: 2002 White & Case Global Privacy Law Survey
White and Williams: Labor and Employment: Seniority Can Trump Disability
1516 (April 29, 2002), the Court held that except in special circumstances, the ADA does not give a worker with a disability a special chance of obtaining an accommodation that would violate a seniority system. Still, the Barnett opinion provides that the disabled employee can try to present evidence of special circumstances that would make a seniority rule exception reasonable in the particular case
Williams Mullen: Frequently Asked Trademark Questions
...g. "loud" for use with music) can only be trademarks under special circumstances. Generally these terms are available for all to use
Winston Strawn: Seniority Systems Are Not Per Se Bar to Reassignment Un...
Winston Strawn: Final Regulations Promulgated Under Section 467 of the ...
January 10
The proposed rule will apply to both US and non-US listed issuers, but will include provisions to address special circumstances in non-US jurisdictions. These changes are required by Section 301 of the Sarbanes-Oxley Act, which amends section 10A(m)(1) of the 1934 Act
China Law & Policy Newsflash - February 01
Although the Notice unifies the treatment of foreign investments of less than 25% in Chinese companies with that of sino-foreign joint ventures (JVs), it makes clear that special tax treatment is not available to Chinese companies with less than 25% foreign investment. Under special circumstances approved by the approval authorities, the payment deadline may be extended to one year, provided that at least 60% of the entire purchase price is paid within six months
Food and Drug Industry Update - September 29
2 The Pediatric Rule was applicable to all drug manufacturers, including those who disclaimed pediatric use in a product's labeling, and even, in certain circumstances, those whose products were previously approved by the FDA. Id. unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust
January 14
The proposed rule changes will apply to both US and non-US listed issuers, but will include provisions to address special circumstances in non-US jurisdictions. For further information please visit the SEC website at http://www
Securities Law Alert- July 11
In the course of the discussion, we also address certain special circumstances that may apply to selected situations. Each company and its certifying officers will need to assess their needs based on their particular facts and circumstances, including, among others, what steps were taken in connection with the preparation and review of the covered filings
Corporate Alert - March 23
In its Report,the SEC specifically noted that it is not intending to change the way issuers engage in merger,or other contractual negotiations, or to alter existing due diligence obligations or practices or to suggest, absent special circumstances (such as provisions intended to create third party beneficiaries), that provisions such as representations and covenants in such agreements are binding on or intended to benefit third parties. Notwithstanding this disclaimer, the SEC noted that it will
Insurance Class Action Defense Alert - August 25
The Supreme Court's test requires courts to look at the particular factual circumstances of the putative class members and to inquire whether resolving the claims (including defenses) of the named plaintiffs will thereby resolve the claims of the other putative class members. If the record submitted demonstrates that liability or damage issues must be resolved class member by class member due to varying factual circumstances, then class certification must be denied
China Law & Policy Digest - March 01
An Automatic Import License will generally be issued upon the receipt of all necessary documents or, under special circumstances, may be issued within 10 working days. Shanghai has set up a special fund, to be managed by the Enterprise Technology Creativity Service Center, to enhance the acquisition and development of imported technologies
China Law & Policy Digest - June 14
...process may be exempted from this requirement under special circumstances approved by the Shanghai Municipal Government. If a Chinese student who has studied and worked abroad for over eight years, sets up after January 1, 2002 a software or integrated circuit design company in Shanghai having a minimum registered capital of RMB500,000, he or she may apply to the Shanghai government for special funding to the extent of RMB100,000
China Law & Policy Digest - May 23
Anti-dumping investigations will begin May 14, 2003, and should end by May 14, 2004, but may be extended to November 14, 2004 under special circumstances. The notice states that "*ST" should be added before the name of a company's listed shares in the following circumstances: (a) the company has continued to incur losses for two years preceding the notice; (b) the company is required by the China Securities Regulatory Commission ("CSRC") to correct its financial statements due to accounting
China Law & Policy Digest - October 26
The agencies in charge of pricing are to place a case on record if the case falls within various enumerated circumstances, including situations where the case is (1) detected during inspections; (2) reported by a consumer or business operator; and (3) referred by other relevant authorities. However, under special circumstances, the state may expropriate part or all of the oil exploited and pay corresponding compensation to the enterprises
China Law & Policy Digest - June 21
This investigation should be completed by November 20, 2002, but special circumstances may warrant a two month extension. Individuals with a Bachelor's degree or higher, or with specialized expertise, who come to Shanghai to work without changing their registered permanent residence or nationality may apply for a Shanghai Residence Permit
China Law & Policy Digest - January 10
With effect from November 1, 2002, the CSRC and the MOJ will not require lawyers and law firms to obtain special approvals to qualify to provide securities-related legal services. This notice also contains provisions that regulate the timeframe for foreign capital injection through purchase of share rights in a domestic enterprise (three months in most cases, or 60% within six months and the remainder within one year under special circumstances)
China Law & Policy Digest - September 05
Individuals are only allowed to leave China with Cash over USD 10,000 under certain special circumstances and must also obtain a Certificate. 3
March 2004 Vol. V
First, the government is allowed, under certain circumstances, to include an "economic price adjustment" clause in fixed-price construction contracts. However, many "unit priced" construction contracts, and specifically VDOT and NCDOT contracts, offer specific clauses that a contractor may use to recover part of its increased costs of materials under some circumstances - principally where there is changed work or significant increases in quantities involved
China Law & Policy Digest - January 15
Import licenses will generally be issued within three (3) working days or, under special circumstances, within ten (10) working days. The measures also provide special tariff and taxation rules for goods imported to replace or remedy goods that have already been imported; goods imported under leasing contracts; goods imported to be
HIPAA Nondiscrimination Rules Clarified
This is a facts and circumstances test. If a shortfall in a COBRA premium payment is an insignificant shortfall, the plan must handle the payment according to the special rules for such shortfalls added by the 1999 final regulations
05-01-01: IP Update
Consequently, the court held that Schoell had not make a showing of a genuine issue for trial: "The doctrine of equivalents is not a talisman that entitles a patentee to a jury trial on the basis of suspicion; it is a limited remedy available in special circumstances, the evidence for which is the responsibility of the proponent." Patents/Validity Extrinsic Evidence May Be Used to Show "Missing" Features Is Inherent in Anticipatory Prior Art Reference By Michael Switzer The US Court of Appeals
05-01-01: IP Update
Consequently, the court held that Schoell had not make a showing of a genuine issue for trial: "The doctrine of equivalents is not a talisman that entitles a patentee to a jury trial on the basis of suspicion; it is a limited remedy available in special circumstances, the evidence for which is the responsibility of the proponent." Patents/Validity Extrinsic Evidence May Be Used to Show "Missing" Features Is Inherent in Anticipatory Prior Art Reference By Michael Switzer The US Court of Appeals
: Congress Passes IDEA of 2004
Special education decision-makers and counsel will need to better understand curricular requirements and see that Individualized Education Programs (IEPs) and special education offerings are directly linked to state standards and are "scientificallybased" and peer-reviewed. Highly Qualified New IDEA "clarified" the meaning of NCLB's highly qualified requirements as applied to special educators
: %20Asset%20Tracing%20and%20Fraud.pdf
: New Minimum Distribution Rules: Easier
This is a facts and circumstances test. If a shortfall in a COBRA premium payment is an insignificant shortfall, the plan must handle the payment according to the special rules for such shortfalls added by the 1999 final regulations
Akin Gump: Supreme Court Addresses Reasonable Accommodation Standa...
Thus, as a summary judgment standard, the Court adopted the rule that a plaintiff must show that the requested accommodation is "reasonable on its face, i.e. ordinarily or in the run of cases." After such a showing by the plaintiff, the defendant employer must show "special (typically case-specific) circumstances that demonstrate undue hardship." The "reasonableness on its face" standard created by the Court appears extremely vague for a summary judgment standard and vests much interpretive
Ballard Spahr: Common Law Marriage in Pennsylvania
Due to special circumstances of this case, neither party has filed an appeal and the time to do so has passed. Most likely, the Pennsylvania Supreme Court will consider this issue in another case, but it may be some time before another case considering the validity of the common law marriage doctrine makes its way to the Supreme Court on appeal
Goodwin Procter: Law Breakfast Seminar: Recent Legal Developments Affect...
Under these circumstances, the Court held that a reasonable jury could conclude that the real reason that the plaintiff had been laid off was his age. In two recent cases, the Massachusetts Supreme Judicial Court and the United States Supreme Court clarified the circumstances under which a plaintiff may assert a continuing violation
Latham & Watkins: A Not So Level Playing Field: Fiduciary Duties in Takeo...
Second, each director must perform his or her duties in good faith, in a manner he or she reasonably believes to be in the best interests of the corporation and with such care as an ordinarily prudent person in a like position would use under similar circumstances (the duty of care). Early consultation with the Panel is encouraged where special circumstances exist or where a conflict with the common law duties of the board may have arisen
Lowenstein Sandler: "Automatic Stay Doctrine Applies to Certain Relate...
That benefit is statutorily reserved solely for the debtor and only under special circumstances defined by the bankruptcy courts over recent years. Unusual Circumstances In In re A.H. Robins Co., 788 F.2d 994 (4th Cir
Sidley Austin: Litigation Alert
The court noted that "Kwiatkowski of course is the very opposite of the naive and vulnerable client who is protected by 'special circumstances.' He was a special customer chiefly by reason of his vast wealth, his trading experience, his business sophistication, and his gluttonous appetite for risk. These factors weigh strongly against--and not at all in favor of--heightened duties on the part of the broker (as suitability rules in other contexts imply)" (Footnote to NASD and other rules
Snell & Wilmer: The Nuts and Bolts of Plan Administration
14 Within a reasonable period of time, but not later than within 60 days of the request for review, the plan administrator or other fiduciary must review the request and issue a decision, although the decision may be issued as late as 120 days after the request for review under special circumstances. 15 Special timing rules apply to certain disability determinations
Stroock: SEC Requires Exchange Listing Standards for Audit Commi...
It is important to note that, based on significant input from and dialogue with foreign regulators and foreign issuers and their advisers, several provisions, applicable only to foreign private issuers, have been included that seek to address the special circumstances of particular foreign jurisdictions. These provisions include allowing non-management employees to serve as audit committee members, consistent with "co-determination" and similar requirements in some countries; allowing
Stroock: SEC Proposes Listing Standards Rule and Adopts Investme...
The rule and rule amendments will eliminate the need for funds to obtain individual exemptive orders in circumstances that are not likely to raise the concerns that the Act was intended to address. It is important to note that, based on significant input from and dialogue with foreign regulators and foreign issuers and their advisers, several provisions have been included that seek to address the special circumstances of particular foreign jurisdictions
Stroock: When Does Reliance Give Rise To A Claim? Caiola and de...
...de Kwiatkowski was an experienced currency trader whose "strategy reflected his belief in the long-term strength of the U.S. dollar."7 He opened a "nondiscretionary" margin account with Bear Stearns' "Private Client Services Group," which provided special services to large private investors. The Second Circuit's Application of the "Special Circumstances"Test Courts have held that particular circumstances impose a higher duty on a broker only when they"render the client dependent" for example,a
Stroock: "Eternity Vs. Morgan Guaranty: When Does Reliance ...
A recent decision by a U.S. district court over credit derivatives transactions raises the possibility that the duty of a broker-dealer or other market professional to its customer or counterpart may be expanded based on the market professional's "unique or special expertise" without regard to the other party's level of sophistication. The district court found that: "Morgan's unique or special expertise in swap transactions and emerging market debt . . . as well as allegations that Morgan was
Vandeventer Black: Delay Due to Steel and Other Commodity Shortages or Pri...
Therefore, if a supplier enters into a fixed price contract to provide steel or other commodity it will probably be required to honor the contract regardless of shortages or price fluctuations, unless special circumstances exist. One such special circumstance is the application of the Defense Production Act (DPA), 50 U.S.C. app
White and Williams: Labor and Employment: Seniority Can Trump Disability
1516 (April 29, 2002), the Court held that except in special circumstances, the ADA does not give a worker with a disability a special chance of obtaining an accommodation that would violate a seniority system. Still, the Barnett opinion provides that the disabled employee can try to present evidence of special circumstances that would make a seniority rule exception reasonable in the particular case
Williams Mullen: Frequently Asked Trademark Questions
...g. "loud" for use with music) can only be trademarks under special circumstances. Generally these terms are available for all to use
Winston Strawn: Seniority Systems Are Not Per Se Bar to Reassignment Un...
Second Quarter 2001; Volume 7
Under President Bush’s Executive Order, the head of a federal procuring agency is granted only limited discretion to allow PLAs in very specific circumstances. An agency may exempt a particular construction project if the agency head determines "that special circumstances require an exemption in order to avert an imminent threat to public health or safety or to serve the national security." (emphasis added)
January 10
The proposed rule will apply to both US and non-US listed issuers, but will include provisions to address special circumstances in non-US jurisdictions. These changes are required by Section 301 of the Sarbanes-Oxley Act, which amends section 10A(m)(1) of the 1934 Act
China Law & Policy Newsflash - February 01
Although the Notice unifies the treatment of foreign investments of less than 25% in Chinese companies with that of sino-foreign joint ventures (JVs), it makes clear that special tax treatment is not available to Chinese companies with less than 25% foreign investment. Under special circumstances approved by the approval authorities, the payment deadline may be extended to one year, provided that at least 60% of the entire purchase price is paid within six months
Food and Drug Industry Update - September 29
2 The Pediatric Rule was applicable to all drug manufacturers, including those who disclaimed pediatric use in a product's labeling, and even, in certain circumstances, those whose products were previously approved by the FDA. Id. unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust
3rd Cir. Treats Punitives & Intangibles: Fear
1990), which established that emotional injury without accompanying physical injury is compensable provided there is "the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious." Because plaintiffs' experts testified that even "one fiber of asbestos could theoretically result in cancer" and because each had been psychologically evaluated for fear, the court found that the Moresi special
January 14
The proposed rule changes will apply to both US and non-US listed issuers, but will include provisions to address special circumstances in non-US jurisdictions. For further information please visit the SEC website at http://www
Corporate Alert - March 23
In its Report,the SEC specifically noted that it is not intending to change the way issuers engage in merger,or other contractual negotiations, or to alter existing due diligence obligations or practices or to suggest, absent special circumstances (such as provisions intended to create third party beneficiaries), that provisions such as representations and covenants in such agreements are binding on or intended to benefit third parties. Notwithstanding this disclaimer, the SEC noted that it will
Insurance Class Action Defense Alert - August 25
The Supreme Court's test requires courts to look at the particular factual circumstances of the putative class members and to inquire whether resolving the claims (including defenses) of the named plaintiffs will thereby resolve the claims of the other putative class members. If the record submitted demonstrates that liability or damage issues must be resolved class member by class member due to varying factual circumstances, then class certification must be denied
China Law & Policy Digest - March 01
An Automatic Import License will generally be issued upon the receipt of all necessary documents or, under special circumstances, may be issued within 10 working days. Shanghai has set up a special fund, to be managed by the Enterprise Technology Creativity Service Center, to enhance the acquisition and development of imported technologies
China Law & Policy Digest - June 14
...process may be exempted from this requirement under special circumstances approved by the Shanghai Municipal Government. If a Chinese student who has studied and worked abroad for over eight years, sets up after January 1, 2002 a software or integrated circuit design company in Shanghai having a minimum registered capital of RMB500,000, he or she may apply to the Shanghai government for special funding to the extent of RMB100,000
China Law & Policy Digest - May 23
Anti-dumping investigations will begin May 14, 2003, and should end by May 14, 2004, but may be extended to November 14, 2004 under special circumstances. The notice states that "*ST" should be added before the name of a company's listed shares in the following circumstances: (a) the company has continued to incur losses for two years preceding the notice; (b) the company is required by the China Securities Regulatory Commission ("CSRC") to correct its financial statements due to accounting
China Law & Policy Digest - October 26
The agencies in charge of pricing are to place a case on record if the case falls within various enumerated circumstances, including situations where the case is (1) detected during inspections; (2) reported by a consumer or business operator; and (3) referred by other relevant authorities. However, under special circumstances, the state may expropriate part or all of the oil exploited and pay corresponding compensation to the enterprises
China Law & Policy Digest - June 21
This investigation should be completed by November 20, 2002, but special circumstances may warrant a two month extension. Individuals with a Bachelor's degree or higher, or with specialized expertise, who come to Shanghai to work without changing their registered permanent residence or nationality may apply for a Shanghai Residence Permit
China Law & Policy Digest - January 10
With effect from November 1, 2002, the CSRC and the MOJ will not require lawyers and law firms to obtain special approvals to qualify to provide securities-related legal services. This notice also contains provisions that regulate the timeframe for foreign capital injection through purchase of share rights in a domestic enterprise (three months in most cases, or 60% within six months and the remainder within one year under special circumstances)
China Law & Policy Digest - September 05
Individuals are only allowed to leave China with Cash over USD 10,000 under certain special circumstances and must also obtain a Certificate. 3
China Law & Policy Digest - January 15
Import licenses will generally be issued within three (3) working days or, under special circumstances, within ten (10) working days. The measures also provide special tariff and taxation rules for goods imported to replace or remedy goods that have already been imported; goods imported under leasing contracts; goods imported to be
HIPAA Nondiscrimination Rules Clarified
This is a facts and circumstances test. If a shortfall in a COBRA premium payment is an insignificant shortfall, the plan must handle the payment according to the special rules for such shortfalls added by the 1999 final regulations
05-01-01: IP Update
Consequently, the court held that Schoell had not make a showing of a genuine issue for trial: "The doctrine of equivalents is not a talisman that entitles a patentee to a jury trial on the basis of suspicion; it is a limited remedy available in special circumstances, the evidence for which is the responsibility of the proponent." Patents/Validity Extrinsic Evidence May Be Used to Show "Missing" Features Is Inherent in Anticipatory Prior Art Reference By Michael Switzer The US Court of Appeals
05-01-01: IP Update
Consequently, the court held that Schoell had not make a showing of a genuine issue for trial: "The doctrine of equivalents is not a talisman that entitles a patentee to a jury trial on the basis of suspicion; it is a limited remedy available in special circumstances, the evidence for which is the responsibility of the proponent." Patents/Validity Extrinsic Evidence May Be Used to Show "Missing" Features Is Inherent in Anticipatory Prior Art Reference By Michael Switzer The US Court of Appeals
: %20Asset%20Tracing%20and%20Fraud.pdf
: New Minimum Distribution Rules: Easier
This is a facts and circumstances test. If a shortfall in a COBRA premium payment is an insignificant shortfall, the plan must handle the payment according to the special rules for such shortfalls added by the 1999 final regulations
Akin Gump: Supreme Court Addresses Reasonable Accommodation Standa...
Thus, as a summary judgment standard, the Court adopted the rule that a plaintiff must show that the requested accommodation is "reasonable on its face, i.e. ordinarily or in the run of cases." After such a showing by the plaintiff, the defendant employer must show "special (typically case-specific) circumstances that demonstrate undue hardship." The "reasonableness on its face" standard created by the Court appears extremely vague for a summary judgment standard and vests much interpretive
Ballard Spahr: Common Law Marriage in Pennsylvania
Due to special circumstances of this case, neither party has filed an appeal and the time to do so has passed. Most likely, the Pennsylvania Supreme Court will consider this issue in another case, but it may be some time before another case considering the validity of the common law marriage doctrine makes its way to the Supreme Court on appeal
Gardner Carton: Yet Another Supreme Court ADA Decision:
Gardner Carton: 2001: A Claims Odyssey
Gardner Carton: 2002: The Claims Odyssey Continues
Latham & Watkins: A Not So Level Playing Field: Fiduciary Duties in Takeo...
Second, each director must perform his or her duties in good faith, in a manner he or she reasonably believes to be in the best interests of the corporation and with such care as an ordinarily prudent person in a like position would use under similar circumstances (the duty of care). Early consultation with the Panel is encouraged where special circumstances exist or where a conflict with the common law duties of the board may have arisen
Snell & Wilmer: The Nuts and Bolts of Plan Administration
14 Within a reasonable period of time, but not later than within 60 days of the request for review, the plan administrator or other fiduciary must review the request and issue a decision, although the decision may be issued as late as 120 days after the request for review under special circumstances. 15 Special timing rules apply to certain disability determinations
Stroock: SEC Requires Exchange Listing Standards for Audit Commi...
It is important to note that, based on significant input from and dialogue with foreign regulators and foreign issuers and their advisers, several provisions, applicable only to foreign private issuers, have been included that seek to address the special circumstances of particular foreign jurisdictions. These provisions include allowing non-management employees to serve as audit committee members, consistent with "co-determination" and similar requirements in some countries; allowing
Stroock: SEC Proposes Listing Standards Rule and Adopts Investme...
The rule and rule amendments will eliminate the need for funds to obtain individual exemptive orders in circumstances that are not likely to raise the concerns that the Act was intended to address. It is important to note that, based on significant input from and dialogue with foreign regulators and foreign issuers and their advisers, several provisions have been included that seek to address the special circumstances of particular foreign jurisdictions
Stroock: When Does Reliance Give Rise To A Claim? Caiola and de...
...de Kwiatkowski was an experienced currency trader whose "strategy reflected his belief in the long-term strength of the U.S. dollar."7 He opened a "nondiscretionary" margin account with Bear Stearns' "Private Client Services Group," which provided special services to large private investors. The Second Circuit's Application of the "Special Circumstances"Test Courts have held that particular circumstances impose a higher duty on a broker only when they"render the client dependent" for example,a
Stroock: "Eternity Vs. Morgan Guaranty: When Does Reliance ...
A recent decision by a U.S. district court over credit derivatives transactions raises the possibility that the duty of a broker-dealer or other market professional to its customer or counterpart may be expanded based on the market professional's "unique or special expertise" without regard to the other party's level of sophistication. The district court found that: "Morgan's unique or special expertise in swap transactions and emerging market debt . . . as well as allegations that Morgan was
Weil: Leasing State-Owned Property in the Czech Republic
In exceptional circumstances and at its discretion, the Ministry of Finance can issue exemptions from the maximum five year lease period, allowing the initial lease term to be for a period longer than five years. However, under special circumstances, the Ministry of Finance can grant an exemption whereby an easement may also be established for other purposes
Weil: Relationship between the Bankruptcy Code and Nonbankrup...
The court held that a finding of special circumstances to confirm a plan of reorganization that overturns a stipulation modifying the automatic stay is only required if the stipulation expressly states that it will bind the parties and the court in any future reorganization. Atalanta Corp. v. Allen (In re Allen), 300 F.3d 1055 (9th Cir
Weil: The Doctrine of Necessity and the Kmart Decision
Bankruptcy courts have articulated under the doctrine of necessity those circumstances in which payments to prepetition vendors/suppliers will be authorized prior to confirmation of a chapter 11 plan. Nevertheless, prepetition debts of the same class often have been treated differently in reorganization cases when a court was confronted with special circumstances, particularly when the debtor s survival was at stake
White and Williams: Labor and Employment: Seniority Can Trump Disability
1516 (April 29, 2002), the Court held that except in special circumstances, the ADA does not give a worker with a disability a special chance of obtaining an accommodation that would violate a seniority system. Still, the Barnett opinion provides that the disabled employee can try to present evidence of special circumstances that would make a seniority rule exception reasonable in the particular case
