June 17, 2016 nº 1,755 - Vol. 13

"Don’t manage - lead change before you have to."

Jack Welch

Read Migalhas LatinoAmérica in Spanish every Tuesday and Thursday. Visit the website at www.migalhas.com/latinoamerica

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  • Top News

Federal appeals court upholds net neutrality regulations

The US Court of Appeals for the District of Columbia Circuit on Tuesday upheld the net-neutrality regulations designed to ensure an open Internet. Last year the Federal Communications Commission (FCC) passed new rules that prevent service providers from offering speedier lands to those willing to pay extra. This caused controversy between businesses such as Google and Netflix with service providers like AT&T, Verizon and Comcast. There has been additional concern that while all customers have not been treated equally neither has all content. This has occurred as a result of various providers offering free data for viewing certain web videos over others. In its decision, the appeals court likened Internet service providers to utilities, saying that they should act as "neutral, indiscriminate platforms for transmission of speech." AT&T has stated its intention to appeal the decision to the Supreme Court. (Click here)

Supreme Court overturns Federal Circuit decision on patent infringement

The US Supreme Court vacated and remanded a Federal Circuit Court of Appeals decision on Monday in Halo Electronics, Inc. v. Pulse Electronics, Inc. The court held in a unanimous decision that the federal circuit was too lax with its discretion in awarding enhanced damages but that the Seagate test is too rigid with too many holes for infringers to slip through. 35 USC §284 provides that a district court "may increase damages awarded to a patentee in an infringement claim, up to three times the amount found or assessed." The Federal Circuit's Seagate test created a two-prong analysis for deciding willful infringement. The test asked the court to find 1) that infringement occured "despite an objectively high likelihood" that the accused infringer's actions constituted infringement, and 2) that the risk of infringement "was either known or so obvious that is should have been known to the accused infringer." The federal courts in this matter refused to provide enhanced rewards regardless of the tests. The Supreme Court vacated these decisions. The court held that discretion is part of the statute when it states that a court "may" award enhanced damages, but that "discretion is not a whim." The court ruled that enhanced damages are not appropriate in the typical infringement case but warranted for "egregious infringement behavior." The court found the Seagate test to be "unduly rigid" while also allowing some of the worst infringers to escape under its "objective prong." The "threshold requirement" for finding willfulness liability under Seagate "excludes from discretionary punishment many of the most culpable offenders, such as the 'wanton and malicious pirate' who intentionally infringes another's patent—with no doubts about its validity or any notion of a defense—for no purpose other than to steal the patentee's business."

Foreign ship mortgages in Brazil: rough seas ahead?

The São Paulo Appellate Court recently decided that a Liberian ship mortgage was invalid in Brazil. According to Rafael Baptista Baleroni and Vitor Nunes Falcone, partner and associate at Souza Cescon Advogados, despite the potential negative effects on ship and offshore asset financing in Brazil, this is not yet an end-game for this security. (Click here)

  • Crumbs

1 - U.S. top court puts some limits on contractor fraud lawsuits - click here.

2 - Bad bosses make for insecure workers - click here.

3 - Bernard Madoff Investors to Receive Another Payout - click here.

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  • MiMIC Journal

Can China innovate?

For the last 30 years, China has been the workshop of the world. That manufacturing growth has transformed it into the world's second-largest economy. But now this growth model is stagnating, and China knows it needs to change to keep its economy growing. China has always been a country that copies its way to success, not a place where creativity thrives. So are China's plans to turn into an innovation superpower realistic? China is now trying to innovate on the factory floor - by replacing workers with machines - so it can make newer more efficient products. In 2006, Beijing announced a new vision for the future - that by 2020 China will transform into an innovative society, and by 2050 it will be a world leader in science and technology. It certainly sounds very ambitious, but China has the political will and the financial muscle to do this. "Chinese companies value knowledge and hard work, American companies value direction and vision. They need a bigger goal: to go global."

  • Law Firm Marketing

Choose one quarterback to call your marketing plays
By Trey Ryder

Sole practitioners and small-firm lawyers have a major advantage over other lawyers: They can often make powerful marketing decisions without delay.

This doesn't mean larger firms can't. But larger firms have one inherent disadvantage: In many case, lots of people want to be involved in the marketing decisions.

THE QUALITY OF A MARKETING DECISION is based on (1) the time it takes to decide, and (2) how much the result has been watered down by compromise. Here's how to calculate the quality of a marketing decision.

TIME REQUIRED: Take the square of the number of people involved.

DILUTION: Subtract 20 percent for each participant after the first.

For example, when two people make the decision, it will take four times as long to make and will be only 80% as good. When three people make the decision, it will take nine times as long to make and will be only 60% as good.

David Ogilvy, founder of mega-ad-agency Ogilvy and Mather, related this story: David walked into a room of 12 executives who were reviewing marketing proposals. The chairman told Ogilvy he would have 15 minutes to make his presentation. When he heard the bell, he was to stop.

Ogilvy said, "Sir, before I begin, please tell me how many of you will be involved in making the marketing decisions."

"All 12 of us," came the reply.

Ogilvy requested, "Please, sir, ring the bell," and he left the room.

Marketing is like football. The quarterback makes a decision, sees how far the team advances, makes another decision, then reviews the team's progress. Decisions can be made quickly because they are made by only one person. Can you imagine how long it would take if the entire football team offered input and then everyone had to agree before they could make the next play?

If you aren't happy with your marketing quarterback, choose someone else. But don't fall into the trap of allowing more than one person to call the plays.

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© Trey Ryder

FREE LAWYER MARKETING ALERT: If you'd like to receive Trey Ryder's weekly Lawyer Marketing Alert, send an e-mail to Trey@TreyRyder.com. Write "Subscribe LMA" in the subject line and write your name and e-mail address in the body of the message.

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  • Historia Verdadera

Arbitraje

Las compañáis chinas Sinopex y Addax demandan a Repsol US$ 5.500 mlls. por una inversión que estas realizaron en una empresa petrolera propiedad de la canadiense Talisman, que a su vez fue comprada por la española en 2014. Las dos empresas chinas han formalizado una demanda arbitral para recuperar el dinero. (Presione aquí)

Arriendo

El fondo estadounidense KKR y la petrolera estatal mexicana Pemex están finalizando detalles de un acuerdo de venta de activos con arrendamiento -sale and leaseback - por un valor de US$ 1,200 mlls. La petrolera venderá al fondo activos de infraestructura, pero continuará operándolos y manteniéndolos a través de un pago de arriendo a KKR durante los 15 años del acuerdo. Después de ese plazo, recomprará los activos.

Inversiones

El fabricante alemán de autos de lujo BMW AG informó que tiene programado comenzar a fabricar, en el 2019, su sedán serie 3 en su nueva fábrica en México, con una producción inicial de 150,000 unidades. BMW colocó el jueves la primera piedra de su planta en el central estado mexicano de San Luis Potosí, en la que invertirá alrededor de US$ 1,000 mlls.

  • Brief News

US diplomats press for strikes against Assad

Dozens of US State Department officials have signed an internal memo protesting against US policy in Syria and calling for targeted military strikes against Bashar al-Assad's government. They argue the current approach is working against the Syrian opposition and helping Assad to stay in power. An official familiar with the letter said that it was sent "because the status quo is not sustainable". It was signed by 51 mid-to-high level officials who advise on Syria issues. It is not unusual for internal "dissent cables" to be filed through State Department channels. However, it is rare to have this number of diplomats voice opposition to a White House position.

Brazil’s tourism minister resigns just weeks before Olympics

Brazilian Tourism Minister Henrique Alves has resigned, after being linked to a corruption scandal. He is the third minister to leave interim President Michel Temer's government. All are implicated in a major corruption scandal at the state oil company Petrobras. On Wednesday, the Supreme Court released testimony by an ex-executive implicating 20 politicians including Temer. He denies the allegations.

Brazil President Temer drawn into Petrobras bribery scandal

Brazilian interim President Temer has been drawn into the bribery scandal at state oil company Petrobras. The latest allegations were made by a former Petrobras executive, Sergio Machado, who has been giving plea bargain evidence to prosecutors. He said Temer, among others, had asked him for illegal campaign contributions for a political ally. Temer has denied doing so. Reuters quoted his office as saying he had always observed campaign finance laws.

EU court rules UK can restrict some benefits to migrants

The European Court of Justice (ECJ) on Tuesday rejected a challenge to Britain's refusal to pay family welfare benefits to unemployed EU migrants who do not have the right to reside in the UK. The judges ruled that such unequal treatment is justified on the basis of protecting a member state's finances. The European Commission argued that Britain's actions were discriminatory. However, the court disagreed finding nothing preventing the UK from requiring immigrants to be legal residents in order to be eligible for welfare benefits. The right to reside test allows migrant workers to move freely, promoting freedom to work, yet does not grant these individuals a claim to benefits. (Click here)

MetLife Judge called profoundly mistaken on too-big-to-fail

The US properly labeled MetLife Inc. as “too big to fail,” the government said, arguing to overturn a ruling that dealt a major blow to efforts to rein in risk in the financial system.
A federal judge “was profoundly mistaken” in interpreting the guidelines required to determine whether a financial institution is systemically important. The US panel is seeking to reverse a March ruling from US District Judge Rosemary Collyer that dealt a blow to the financial regulation enacted after the 2008 financial crisis. FSOC’s process to designate MetLife as a systemically important financial institution, or SIFI, was “fatally flawed” since the panel failed to follow its own guidelines when deciding the insurer could be a danger to markets if it’s in distress, she said. SIFIs face stricter regulation than smaller firms, including capital and leverage requirements.

Microsoft to help track legalized marijuana sales

Microsoft has teamed up with California-based technology start-up Kind Financial, which helps businesses and government agencies track sales of legalized marijuana "from seed to sale". Kind has been selling its marijuana tracking software to businesses and governments for some three years. The start-up will now be able work on Microsoft's government cloud. Kind's software, which is called Agrisoft Seed to Sale, "closes the loop between marijuana-related businesses, regulatory agencies, and financial institutions."

Colombia tackles Congress absenteeism

A bill aiming to punish absenteeism in Colombia's Congress passes a key first stage, two days after a debate on it was cancelled because not enough lawmakers were present.

Bank of England warns Brexit risks global

The Bank of England has warned that uncertainty about the EU referendum is the "largest immediate risk" facing global financial markets. The Bank said there were "risks of adverse spill-overs to the global economy" from the 23 June vote. It was "increasingly likely" that sterling would fall further - perhaps sharply - in the event of a leave vote, the Bank added. (Click here)

Obama condemns LGBT discrimination

Discrimination against LGBT people must be tackled at home and abroad, Obama has said after meeting relatives of Orlando attack victims.

Supreme Court rules on contractor liability under False Claims Act

The US Supreme Court ruled unanimously Thursday in Universal Health Services v. United States ex rel. Escobar, a case dealing with fraud claims against federal contractors. The question before the court was whether the "implied certification test" under the False Claims Act is valid and if so whether the relevant statute has to state explicitly the conditions of payment that the defendant allegedly failed to meet. Justice Clarence Thomas wrote for the court: ”We first hold that, at least in certain circumstances, the implied false certification theory can be a basis for liability. Specifically, liability can attach when the defendant submits a claim for payment that makes specific representations about the goods or services provided, but knowingly fails to disclose the defendant's noncompliance with a statutory, regulatory, or contractual requirement. In these circumstances, liability may attach if the omission renders those representations misleading.”

Geneva opens criminal probe after Mossack Fonseca complaint

Geneva prosecutors opened a criminal probe following a complaint filed by Mossack Fonseca, the Panamanian law firm at the heart of the Panama Papers scandal that led to revelations about how the world’s rich hide their money. An IT technician at the Geneva office of Mossack Fonseca has been arrested by police a few days ago, on suspicion of leaking massive amounts of confidential data. Prosecutors also searched the Geneva offices of the firm and took some electronic documents. Switzerland, known for its strict secrecy laws, has previously targeted figures caught up in whistle-blowing scandals.

FedEx agrees to $240 million settlement with drivers

The deal may end a longstanding legal dispute over whether drivers in 20 states were employees or independent contractors.

Philadelphia to bring in 'soda tax'

Philadelphia has introduced a levy on carbonated sugary drinks, despite a multimillion-dollar campaign by the beverage industry to block it. It will become the first major US city to implement a so-called "soda tax", which supporters say will improve the health of 1.5 million residents. But opponents say it will hurt small businesses and poorer people. The measure will come into force in January and is expected to raise $90m next year.

Venezuela officials ask top court to block referendum to remove president

Venezuelan government officials on Tuesday asked the Supreme Court to deny a referendum to remove President Nicolas Maduro proposed by opposition leaders. Following the declaration by the National Electoral College (CNE) that more than 600,000 signatures found on the petition for the referendum were "invalid," those in support of Maduro, such as Jorge Rodriguez, accused opposition leaders of fraud. On Tuesday US Secretary of State John Kerry announced his support for the referendum, according to the Venezuelan government. Hours later, however, Kerry announced talks between the two nations in an attempt to "improve the relationship." It is unlikely that a referendum will take place this year.

House rejects new limits on government surveillance

The House voted against setting new curbs on government spying powers in a tilt toward national security—and away from privacy rights—following the Orlando shootings.

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