Attorneys General Support New Food Product Labeling Program

On July 29, 2010, the Ohio Attorney General joined 11 other state attorneys general in support of the U.S. Food and Drug Administration’s proposal to make food labels more meaningful to consumers. Richard Cordray, Ohio’s Attorney General stated, “As Ohio consumers strive to save money, it shouldn’t cost them their health.”

Ohio has its own labeling laws that prohibit selling or offering to sell any food, drug, device or cosmetic that is misbranded and prohibit the “dissemination of any false advertisement.” Cordray has signaled the request for increased penalties in the Federal Bill and enforcement of all labeling and misbranding laws.

Contact:
George W. Rooney, Jr.
Roetzel & Andress
Akron/Cincinnati, Ohio / USA
grooney@ralaw.com
www.ralaw.com

ECJ, Case C-145/08

Referring to Directive 92/50/EEC but also applicable to Directive 2004/17/EEC, the European Court of Justice decided on 6th May 2010 that the different aspects of a mixed contract constitutes for the main proceedings an indivisible whole, of which the aspect relating to the transfer of shares constituted the main object. It furthermore came to the conclusion that the transfer of shares to a tenderer in the context of a privatisation of a public undertaking did not fall within the scope of the directives on public contracts.

The case’s facts were the following: The competent interministerial committee decided to privatize Elliniko Kazino Parnithas AE (‘EKP’), a subsidiary of Ellinika Touristika Akinita AE (‘ETA’), an undertaking wholly owned by the Greek State. Therefor, a mixed contract was concluded of which the main object was the acquisition by an undertaking of 49% of the capital of a public undertaking and the ancillary object, indivisibly linked with that main object, was the supply of services and the performance of works. The contract notice published in October 2001 provided for an initial preselection stage to determine which tenderers met the conditions set out in that notice. The Court held that the acquisition represents the main object of the contract. Thus, the mixed contract applies in the main proceedings to the Directive 92/50/EEC.

In its judgment, the Court followed its case-law. Thereafter, in the case of a mixed contract, the different aspects of which were, in accordance with the contract notice, inseparably linked and formed an indivisible whole, the transaction at issue must be examined as a whole for the purposes of its legal classification and must be assessed on the basis of the rules which governed the aspect which constituted the main object or predominant feature of the contract (see Case C 3/88 Commission v Italy [1989]; Case C 331/92 Gestión Hotelera Internacional [1994]; Case C 220/05 Auroux and Others [2007]; Case C 412/04 Commission v Italy [2008]; and Case C 536/07 Commission v Germany [2009]). Therewith, the Court confirmed his criticism without explicit mentioning regarding to the “Ahlhorn” judgment of the Higher Regional Court of Dusseldorf (VII-Verg 2/07). In this judgment of the 25th March 2010 (Case, C-451/08), the Court clarified its well-known 2007 ruling in Auroux vs. Rosanne. In that earlier case, the ECJ ruled that a French local authority scheme to develop a new leisure centre amounted to a public works contract that had to be awarded via a competitive tender under the EU procurement directives. Before, several German Higher Regional Courts have argued, real estate sales of the state use to follow the rules of the German Law against Restraints on Competition (GWB). The ECJ turned against this jurisdiction now.

In conclusion, the obligation of the state in conjunction with real estate sales on which the EU abetment and competition law especially the Commission Communication on State aid elements in sales of land and buildings by public authorities (97/C 209/03) apply, remain unaffected by the Court’s case. Any disregard of this rule violates article 107 of the Treaty of the European Union (TEU) and is also a violation of German competition law (§ 3 UWG) which is liable for trail in a civil court of justice in Germany.

Authors: Harald Nickel / Christoph Bausewein
Nickel Rechtsanwälte
Partnergesellschaft
D-63452 Hanau / Germany
Phone: +49 6181 270235
mail: nickel@nickelonline.de
www.nickelonline.de

Senate Bill 3217, the Restoring American Financial Stability Act of 2010, seeks to pay a bounty between 10 and 30% of any monetary sanction imposed to whistleblowers who voluntarily provide “original information”
to the Securities and Exchange Commission (SEC).

Click here for more info

Contact:
George W. Rooney, Jr.
Roetzel & Andress
Akron/Cincinnati, Ohio / USA
grooney@ralaw.com
www.ralaw.com

Created in 1977, FCPA established criminal and civil penalties for illicit payments made to any foreign officials by U.S. corporations, nationals, subsidies or third parties. The United States has the right, under the nationality principle, to exercise jurisdiction for violations of the FCPA over any of its nationals that have been accused of criminal offenses not only in the U.S., but in any other country as well. FCPA, therefore, not only applies to payments that U.S. companies make themselves, but those made by their subsidiaries or third parties. The penalties are severe and include forfeiting the revenue earned from the business generated beyond the U.S. borders.

One provision proposed by Congress and pending financial regulatory legislation would allow whistleblowers in FCPA and securities fraud cases to claim a 10 to 30 percent bounty in enforcement actions that impose penalties of more than $1 million. The U.S. government has levied significant penalties against corporations and individuals for violations of FCPA in recent years, including a record $900 million fine in 2008. This promise of bounties measured as a percentage of such large penalties clearly threatens to have immediate repercussions on the enforcement environment faced by companies with securities traded in the U.S.

Given the recent expansion by the federal government, particularly by the Department of Justice in investigations and sting operations both domestically and internationally in FCPA, it has become imperative that corporations doing business beyond the U.S. borders have a FCPA defense strategy, compliance plan and policy in place. The law requires that the compliance plans be updated, enforced and carefully followed to avoid unauthorized facilitation payments being made to foreign officials to source products or business abroad. Since the penalties for FCPA violations are significant, a careful review of risk is recommended. This includes insuring the suppliers to your business are not exposing your company to FCPA violations. One mechanism that can assist in providing this assurance is the implementation of an FCPA compliance program.

Michael F. Ruggio and Brian E. Dickerson of Roetzel & Andress have over 45 years of combined experience necessary to advise your company on potential exposures to FCPA and guide your company through the implementation of a compliance program which satisfies the rigorous standards set forth by the Department of Justice.

Both are knowledgeable in all areas of FCPA and other international anti-corruption enforcement. Our lawyers are experienced in advising and representing companies in anti-corruption-related matters in the U.S. and abroad. We conduct internal investigations and have extensive trial experience involving civil and criminal cases in Federal Court and before the Department of Justice and the SEC.

Roetzel & Andress also provides counsel on avoiding FCPA problems by advising on the development of compliance programs, due diligence procedures and other anti-corruption best practices. We frequently conduct focused training sessions with client executives and key personnel. We also conduct FCPA due diligence in connection with our clients’ corporate transactions, such as mergers and acquisitions, joint venture agreements and financings.
If you would like to discuss further our firm’s ability and knowledge on FCPA and development of these protections for your company, please contact Mike or Brian at the information listed below.

Michael F. Ruggio, Washington, D.C.
(202) 216-8709 | mruggio@ralaw.com

Brian E. Dickerson, Naples
(239) 649-2702 | bdickerson@ralaw.com

Senate Bill 3217, the Restoring American Financial Stability Act of 2010, seeks to pay a bounty to whistleblowers who voluntarily provide “original information” to the Securities and Exchange Commission (SEC). Such whistleblowers could receive between 10 and 30 percent of any monetary sanctions imposed in resulting enforcement actions. These payments would be measured by the sanctions imposed, not just by the SEC, but also by those imposed in “related actions” brought by the U.S. Department of Justice or other agencies. The SEC would determine the precise amount of any award within the permitted range, taking into account such factors as the significance of the information received and the level of cooperation provided. Individuals convicted of related crimes would be barred from receiving awards. Whistleblowers are permitted to be represented by counsel under the legislation, and those who choose to provide information anonymously are required to have an attorney.

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Referring to Directive 92/50/EEC but also applicable to Directive 2004/17/EEC, the European Court of Justice decided on 6th May 2010 that the different aspects of a mixed contract constitutes for the main proceedings an indivisible whole, of which the aspect relating to the transfer of shares constituted the main object. It furthermore came to the conclusion that the transfer of shares to a tenderer in the context of a privatisation of a public undertaking did not fall within the scope of the directives on public contracts.

click here for more info

Contact:
Harald Nickel
Nickel Rechtsanwälte
Hanau / Germany
hanau@nickelonline.de
www.nickelonline.de

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