At this rate, both H-1B caps could be reached in mid-June. Detailed information is available on USCIS’ H-1B Fiscal Year 2013 Cap Season web page.
(c) Picture: USCIS
Thursday, May 31, 2012
H-1B Cap Might be Reached Soon
At this rate, both H-1B caps could be reached in mid-June. Detailed information is available on USCIS’ H-1B Fiscal Year 2013 Cap Season web page.
North Carolina May Face Federal Lawsuit Over Disabilities Investigation
This agreement raises the concern that the state does not have sufficient funds to provide for such an increase in home care for disabled persons. Department of Health and Human Services (DHHS) officials plan to provide lawmakers with an exact dollar amount in costs which will be necessary in order to make these changes.
Vicki Smith, the director of Disability Rights North Carolina, the organization who filed this complaint with the DOJ in 2010, believes these changes would bring help to at least 6,000 people in adult care programs. “A lot of people who are living [in] adult care homes now would be able to go back to work, pay their own rent, pay taxes and contribute,” said Smith.
If the state does not take any action this year, the looming threat of a lawsuit may become reality.
(c) Picture: freedigitalphotos.net
Wednesday, May 30, 2012
Scam Alter for Green Card Lottery
Please note, that as an DV-2012 and DV-2013 applicant you may receive an email from the U.S. government reminding you to check your status online through DV Entrant Status Check. The U.S. government will never send you a notification letter or email informing you that you are a successful DV entrant.
You can only find out if you were selected to continue with DV processing by checking your status online through the DV Entrant Status Check.
Finally, remember that fees for the DV application process are paid to the U.S. Embassy or consulate cashier at the time of your scheduled appointment. The U.S. government will never ask you to send payment in advance by check, money order, or wire transfer.
To prevent scamming, please make yourself familiar with information about Diversity Visa scams and review the rules and procedures for the Diversity Visa Program.
Finally, remember that fees for the DV application process are paid to the U.S. Embassy or consulate cashier at the time of your scheduled appointment. The U.S. government will never ask you to send payment in advance by check, money order, or wire transfer.
To prevent scamming, please make yourself familiar with information about Diversity Visa scams and review the rules and procedures for the Diversity Visa Program.
(c) Picture: freedigitalphotos.net
Friday, May 25, 2012
Skechers Agrees to Pay $40 Million in Settlement for Deceptive Sneaker Ads
The Federal Trade Commission challenged several Skechers ads as deceptive, including one in which the company urged consumers to "get in shape without setting foot in a gym." Another ad wrongly claimed that the shoes’ benefits were backed by an independent chiropractor study. In fact, the FTC concluded the study didn't produce the claimed results, and that the chiropractor who conducted the study is married to a Skechers marketing executive.
You would think Skechers might have learned a lesson from Reebok. It was just in September of last year that the FTC settled charges with Reebok International Ltd., a unit of Adidas, for its EasyTone walking shoes and RunTone running shoes for $25 million. Other examples of misleading advertising leading to multimillion-dollar settlements include a 2010 case involving Wrigley’s Eclipse gum (it doesn't actually kill bad-breath germs, as the company claimed -- it only masks them) and a 2008 settlement from Airborne (the supplement that didn't actually prevent colds).
The line of “toning shoes” eligible for refunds includes Skechers Shape-Ups, Resistance Runner, Toners and Tone-Ups. The FTC says the amount of refunds eligible to consumers who purchased these shoes is unclear and will depend on how many claims are received in the eight-month filing period. Buyers can go to the FTC website to file a claim.
(c) Picture: freedigitalphotos.net
Wednesday, May 23, 2012
Germany: “Pay-when-paid” clauses in General Contractor GTCs held invalid
The Court held that, in the sub-contracting arena, there is no good reason to allow a General Contractor to pass the risk of non-payment by his debtors to the sub-contractor.
We now review only the facts and discussion of this case pertinent to our analysis of the future validity of “pay-when-paid” clauses:
Defendant was the General Contractor (“GC”); Plaintiff was a sub-contractor (“Sub”) for heating and sanitary work. Prior to the contractual relationship Plaintiff was provided with the General Terms and Conditions contract (“GTCs”) as well as payment conditions and safety clauses of Defendant. The dispute arose with regard to six invoices as a result of emergency repairs due to a pipe break.* All the work by the Sub was performed according to the professional standards and final invoices were provided to Defendant who in turn delivered said invoices – plus his margin – to his customer. The customer had no complaints with regard to the work performed as described in the disputed invoices.
Most of the outstanding invoices were settled during litigation. Nevertheless, Defendant rejected payment for the remaining invoices by referring to their GTCs. The said GTCs included a “pay-when-paid” clause which allowed that payment of invoices of the Sub would be due and payable five working days after the GC received payment from his customers for the services. Plaintiff argued first that the GTCs were not properly included into the agreement and in the alternative that the “pay-when-paid” clause is invalid because it creates a duplication of payment risk to the detriment of the Sub. The Sub would therefore be at risk not only with regard to the payment and payment ability of the GC but also as to the GC’s customer.
Plaintiff therefore requested payment notwithstanding the “pay-when-paid” clause. Defendant motioned the Court for dismissal of the action, arguing that the clause and the GTCs were a) properly included in the contract and b) cannot be considered unlawful.
Although the Court found, in favor of Defendant GC, that the GTCs were properly included in the contract,** the Court rejected the notion that Defendant GC can successfully rely on the “pay-when-paid” clause within the GTCs. The Court held that this clause is invalid and a deferment of an outstanding claim/payment under this is disproportionate in light of 307 II Nr. 1 BGB (German civil code). The court found further that the clause in dispute inadequately discriminated against the Sub in light of the principal of “utmost good faith”. The court stated that the given “pay-when-paid” clause departs from the basic idea of the respective regulations in the German civil code and cannot be brought in a line with such.
If the GTCs in question together with the “pay-when-paid” clause were permitted, Defendant would be allowed a deferment of payment to the Sub beyond what is provided with regard to the due date of such invoices in the German civil code, section 641 II Nr. 2 BGB. It creates an imbalance insofar as the Sub’s compensation is conditioned not upon the quality of his work or proper performance but instead upon a contract to which the Sub is not a party. Moreover, the clause does not contain a provision in the case that the customer of the GC delays payment for an indefinite time, nor does it contain a provision permitting the Sub to request the GC to take any action against his customer in the case of delayed or non-payment. The Court did not see that modification of the clause was possible to the extent that would be legally acceptable under § 305 of the German Civil Code. Thus, the Court states that such indefinite and undue deferment is a fundamental deviation from the legal provisions of the German civil code (§ 641 II Nr. 2 BGB).***
The Court cited other case law and commentaries in its holding that a “pay-when-paid” clause, when used in GTCs between a GC and a Sub, is in violation of German law and therefore invalid.
Conclusion
The District Court confirms that a “pay-when-paid” clause within the GTCs between a General Contractor and a Sub-contractor is invalid under German law. While an individualized agreement might be considered valid, the prevailing practice in this industry is to use standardized terms, forms and contracts which often qualify as GTCs under German law.
Nevertheless, parties should consider modifying “pay-when-paid” clauses found within their GTCs according to the Court’s findings. In particular, this might include providing deadlines for any deferral of payment and/or providing conditions as to what actions the GC must take toward his customer in the case of deferred or non-payment.
Plaintiff therefore requested payment notwithstanding the “pay-when-paid” clause. Defendant motioned the Court for dismissal of the action, arguing that the clause and the GTCs were a) properly included in the contract and b) cannot be considered unlawful.
Although the Court found, in favor of Defendant GC, that the GTCs were properly included in the contract,** the Court rejected the notion that Defendant GC can successfully rely on the “pay-when-paid” clause within the GTCs. The Court held that this clause is invalid and a deferment of an outstanding claim/payment under this is disproportionate in light of 307 II Nr. 1 BGB (German civil code). The court found further that the clause in dispute inadequately discriminated against the Sub in light of the principal of “utmost good faith”. The court stated that the given “pay-when-paid” clause departs from the basic idea of the respective regulations in the German civil code and cannot be brought in a line with such.
If the GTCs in question together with the “pay-when-paid” clause were permitted, Defendant would be allowed a deferment of payment to the Sub beyond what is provided with regard to the due date of such invoices in the German civil code, section 641 II Nr. 2 BGB. It creates an imbalance insofar as the Sub’s compensation is conditioned not upon the quality of his work or proper performance but instead upon a contract to which the Sub is not a party. Moreover, the clause does not contain a provision in the case that the customer of the GC delays payment for an indefinite time, nor does it contain a provision permitting the Sub to request the GC to take any action against his customer in the case of delayed or non-payment. The Court did not see that modification of the clause was possible to the extent that would be legally acceptable under § 305 of the German Civil Code. Thus, the Court states that such indefinite and undue deferment is a fundamental deviation from the legal provisions of the German civil code (§ 641 II Nr. 2 BGB).***
The Court cited other case law and commentaries in its holding that a “pay-when-paid” clause, when used in GTCs between a GC and a Sub, is in violation of German law and therefore invalid.
Conclusion
The District Court confirms that a “pay-when-paid” clause within the GTCs between a General Contractor and a Sub-contractor is invalid under German law. While an individualized agreement might be considered valid, the prevailing practice in this industry is to use standardized terms, forms and contracts which often qualify as GTCs under German law.
Nevertheless, parties should consider modifying “pay-when-paid” clauses found within their GTCs according to the Court’s findings. In particular, this might include providing deadlines for any deferral of payment and/or providing conditions as to what actions the GC must take toward his customer in the case of deferred or non-payment.
____________________________________________________
*For the sake of simplicity, we leave aside the fact that one invoice relates to work performed by the Sub without specific and agreed upon GTCs.
**The Court found that the content, circumstances and form of the provisions constitute GTCs within the meaning of section 305 BGB (German civil code).
*** The Court acknowledged Defendant’s argument that a change of due date can be determined by the parties under § 641 II Nr. 2 BGB however only with regard to individualized agreements. If such changes are included in the GTCs, they must comply with § 307 of the German civil code.
*For the sake of simplicity, we leave aside the fact that one invoice relates to work performed by the Sub without specific and agreed upon GTCs.
**The Court found that the content, circumstances and form of the provisions constitute GTCs within the meaning of section 305 BGB (German civil code).
*** The Court acknowledged Defendant’s argument that a change of due date can be determined by the parties under § 641 II Nr. 2 BGB however only with regard to individualized agreements. If such changes are included in the GTCs, they must comply with § 307 of the German civil code.
(c) Picture: freedigitalphotos.net
BridgehouseLaw Munich wins Acquisition International M&A Award
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| Acquisition International |
CONGRATULATIONS to BridgehouseLaw Munich and Oliver Bolthausen for winning the Acquisition International M&A Award Cross Border Dispute Advisory Firm of the Year: Germany.
To learn more about the award, please click here.
„Der gläserne Fluggast?“ – Speicherung und Weitergabe von Fluggastdaten*
Das Europaparlament stimmte im April 2012 einem umstrittenen Abkommen zur Weitergabe von Fluggastdaten zwischen der EU und den USA zu. Dieser Vertrag erlaubt den amerikanischen Behörden den Zugriff auf Informationen über jeden EU-Passagier und die bis zu 15-jährige Speicherung von 19 personenbezogenen Daten von Flugreisenden, die auf einem Transatlantikflug aus den Vereinigten Staaten kommen oder dort einreisen wollen. Zu diesen Daten zählen u. A. Name, Anschrift, Telefonnummer, E-Mail-Adresse, Sitzplatz- und Kreditkartennummer, Anzahl der Gepäckstücke, Menü sowie Sonderwünsche der Passagiere an Bord sowie gegebenenfalls Hotel- und Mietwagenbuchungen.
Zweck dieser Speicherung soll die Bekämpfung von Terrorismus und schwerer Kriminalität sein. Der Vertrag soll eine in 2007 in Kraft getretene vorläufige Vereinbarung ersetzen, welche den USA jetzt unmittelbar Zugriff auf personenbezogene Daten erlaubt.
Das Europaparlament hat das Flugastdatenabkommen mit den USA abgesegnet. Die europäischen Mitgliedsstaaten hatten dem Fluggastdatenabkommen bereits im Dezember vergangenen Jahres mehrheitlich zugestimmt. Deutschland enthielt sich der Stimme. Aus deutscher Sicht ist das Abkommen zur Weitergabe von Fluggastdaten zwischen der EU und den USA datenschutzrechtlich bedenklich.
Im April 2012 stimmte die Mehrheit der EU-Innenminister für ein ähnliches System für Flüge aus und nach Europa. Der deutsche Innenminister stimmte diesem Mehrheitsbeschluss, Diplomatenangaben zufolge, nicht zu. Passagierinformationen sollen in einer EU-Datenbank fünf Jahre lang gespeichert werden. Nach zwei Jahren werden die Angaben in den Datenbanken jedoch anonymisiert.
Im April 2012 stimmte die Mehrheit der EU-Innenminister für ein ähnliches System für Flüge aus und nach Europa. Der deutsche Innenminister stimmte diesem Mehrheitsbeschluss, Diplomatenangaben zufolge, nicht zu. Passagierinformationen sollen in einer EU-Datenbank fünf Jahre lang gespeichert werden. Nach zwei Jahren werden die Angaben in den Datenbanken jedoch anonymisiert.
Die Daten sollen zur Verhütung, Aufdeckung und Verfolgung von Terrorismus und schwerer Kriminalität dienen. Ob auch Fluggastdaten innereuropäischer Flüge gespeichert werden, soll den einzelnen Ländern überlassen bleiben. Auch hiergegen äußern Datenschützer Bedenken.
(c) Picture: freedigitalphotos.net
*Autorin: Kerstin Kolander - Rechtsreferendarin aus Hagen, die derzeit die Wahlstation bei BridgehouseLaw Atlanta ableistet.
Tuesday, May 22, 2012
Gastonia Eliminates Wage Requirement in Business Incentive Program*
It seems City Council members have now for some time sought to eliminate this wage requirement. In February of this year the Council approved an incentive package for a metal working company that eliminated the wage requirement. This company plans to bring as many as 110 new jobs to Gastonia.
City Council members made these changes with jobs in mind. “The bottom line is we want to make sure our people get jobs, someway, somehow,” said Councilwoman Brenda Craig, during a previous discussion on the issue.
The city’s changes have also removed requirements that dealt with specific job creation, as well as a benefit tied to construction that met Leadership in Energy and Environmental Design standards.
(c) Picture: Gaston County
*Author: Lindsey Ogden - a North Carolina native from Campbell Law School who currently interns at BridgehouseLaw Charlotte.
Thursday, May 17, 2012
ATTENTION: New BridgehouseLaw Atlanta Address / Neue BridgehouseLaw Atlanta Adresse
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| The Proscenium |
Please note that BridgehouseLaw Atlanta has moved its office from the 17th floor of The Proscenium to the 18th floor. The new address is:
BridgehouseLaw
Atlanta Rueckel & Bolthausen, LLC
Atlanta Rueckel & Bolthausen, LLC
1170 Peachtree Street, N.E.
Suite 1800 The Proscenium
Suite 1800 The Proscenium
Atlanta, Georgia 30309 • U.S.A.
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Bitte beachten Sie, dass sich das Büro von BridgehouseLaw Atlanta Büro nicht mehr im 17. Stock des Proscenium Gebäudes befindet, sondern im 18. Stock. Die neue Adresse lautet:
BridgehouseLaw
Atlanta Rueckel & Bolthausen, LLC
Atlanta Rueckel & Bolthausen, LLC
1170 Peachtree Street, N.E.
Suite 1800 The Proscenium
Suite 1800 The Proscenium
Atlanta, Georgia 30309 • U.S.A.
Wednesday, May 16, 2012
Alabama’s Immigration Law Jeopardizes School Kids
As reported on our Blog in February 2009 Alabama has ongoing problems with his immigration law (HB 56). In September of last year, the state started to enforce the toughest immigration law of the nation. It caused several unwanted side effects. Among other things it requires schools to verify the citizenship of students and allows students to be questioned on their immigration status.
Now the U.S. Department of Justice is concerned that Alabama’s immigration law has made schools “less safe and welcoming” for Hispanic students and may have led 13.4% of those students to withdraw from school in the course of several months.That is according to a four-page letter dated May 1 from U.S. Assistant Attorney General Thomas Perez to Alabama school Superintendent Tommy Bice. The letter was made public last week and was first reported by CNN.
Furthermore, according to research conducted by the Department of Justice, Hispanic students absence rates tripled while absence rates of other groups of students remained virtually flat. Additionally, many students reported of being singled out to receive notices or attend assemblies about HB 56, as well as increased anxiety and diminished concentration in school, deteriorating grades and increased hostility, bullying and intimidation.
The problem has bothered the U.S. Department of Justice for a while as it is the department's duty to enforce laws that bar "discrimination on the basis of race, color or national origin," and requires that "affirmative measures" be taken to assist students for whom English is not their native language. The withdrawal of many students means that they do not receive the educational services (English as a second language) to which they are legally entitled.
In October 2011, the 11th Circuit Court of Appeals already blocked the section of Alabama's immigration requiring schools to track immigration information about new students. The court ruled such measures were not needed.
Whether more sections of Alabama's immigration law will be struck down because of unintended consequences, remains to be seen.
(c) Picture: Alabama Great Seal
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