Commercial Law

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Everyone knows that a manager who expresses discriminatory views and then fires or disciplines an employee belonging to the disfavored group may create a claim against the employer. But what happens when an unbiased manager relies on the recommendation of another supervisor who, unbeknownst to the decision maker, is a raging bigot?

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<i>Hide a dagger in a smile. Murder with a borrowed knife. Loot a burning house.</i> If you cannot anticipate these and the other classic 'Thirty-Six Stratagems' that are widely studied and practiced in China, you may be perilously unprepared to pursue business, including legal business, in the world's largest market. And while China may be an extreme example, analogs of these deceptive and sometimes corrupt practices appear in other cultures worldwide.

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Discussion and analysis of the latest rulings.

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Review of a key case.

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When the City of New York sells property subject to statutorily authorized conditions, what language in the deed is necessary to ensure that the conditions bind subsequent purchasers? That question confronted the Court of Appeals in <i>328 Owners Corp. v. 300 West 86 Oaks Corp</i>. (NYLJ 4/4/07, p. 18, col. 1), in which the Court of Appeals held that successor purchasers were bound by deed language restricting the original purchaser to use of the property for rehabilitation or conservation of the existing building or construction of one to four unit dwellings.

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The New Franchise Rule deletes the four exclusions in the existing Rule for employer-employees and general partnerships, cooperative organizations, testing or certification services, and single trademark licenses, since a revised definition of 'franchise' in the Rule obviates the need for these exclusions. The New Rule retains the exemption for franchise sales under $500, fractional franchises, and leased departments, while adding an exemption for petroleum marketers governed by the Petroleum Marketing Practices Act, as well as for three categories of 'sophisticated investor.'

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With optional use of the updated Franchise Rule coming on July 1, 2007, and mandatory use beginning on July 1, 2008, the broad outlines of the Rule are well understood in the franchise industry even at this early point. Yet, as franchise attorneys work with individual clients, they are finding unique circumstances under which the Rule's guidance is confusing or even contradictory, particularly during the one-year transition period. Thus, two panel discussions at the International Franchise Association ('IFA') Legal Symposium on May 6-8 in Washington, DC, were the ideal opportunities for attorneys to raise what-if questions with regulators and their fellow franchise attorneys.

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The new franchise regulations recently issued by China's State Council became effective on May 1, 2007. Shortly after their promulgation, MOFCOM, the ministry that has authority to interpret and implement the regulations, issued two implementation guidelines, namely the Administration Rules on Commercial Franchise Filing and the Administration Rules on Commercial Franchise Information Disclosure. The regulations are intended not only to provide presale disclosure to prospective franchisees, but also to restrict use of franchising to legitimate business operators. Moreover, the regulations seek to gather statistical data on the scope of franchise activities in China through a franchise registration process.