North America

Case Review: McCormick v. Fasken Martineau DuMoulin LLP

By Heather Hettiarachchi

In the much anticipated decision of McCormick v. Fasken Martineau DuMoulin LLP issued today, the Supreme Court of Canada ruled that Mr. McCormick, previously an equity partner of Fasken Martineau DuMoulin LLP (“Fasken”), could not avail himself of the protection afforded to employees pursuant to s. 13 of the British Columbia Human Rights Code (the “Code“), as his relationship with the firm was not that of an employee.

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California Supreme Court Opens the Door to Class Action Waivers, Shuts Door to Waiver of Representative Actions

By Marisa S. Ratinoff and Amy B. Messigian

One of the main battlegrounds between employers and employees relates to the ability of employers to preclude class actions by way of arbitration agreements containing class action waivers. In California, the seminal case of Gentry v. Superior Court (“Gentry”) has had the practical effect of invalidating class action waivers in employment arbitration agreements since 2007. Gentry held that an employment class action waiver was unenforceable as a matter of California public policy if the class action waiver would “undermine the vindication of the employees’ unwaivable statutory rights” under the Labor Code. Thus, California financial services employers and national financial services employers with a business presence in California have found it extremely difficult, if not impossible, to enforce class action waivers in their employment arbitration agreements over the past seven years and have seen scores of California wage and hour cases proceed in court under the harsh hand of Gentry.

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AMA Adopts Telemedicine Guidelines

On June 11, 2014, the American Medical Association (“AMA”) approved a list of guiding principles regarding the practice of telemedicine.  The AMA’s adoption of the telemedicine guiding principles follows the trend of position statements, guidelines, and other policy statements addressing the practice of telemedicine already adopted by other medical specialty societies and state medical associations, […]

The post AMA Adopts Telemedicine Guidelines appeared first on OMW Health Law.

For more information please visit www.omwhealthlaw.com or click on the headline above.

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Multistate Tax Update — June 26, 2014

On June 18, 2014, the House Judiciary Committee of the U.S. Congress passed the Permanent Internet Tax Freedom Act bill by a 30 to 4 vote, moving it forward to be considered by the House of Representatives. The Permanent Internet Tax Freedom Act bill seeks to modify the Internet Tax Freedom Act by permanently banning state and local governments from taxing access to the Internet and from imposing multiple or discriminatory taxes on electronic commerce. (See prior Multistate Tax Update articles on June 12, 2014 and October 24, 2013, in which the Illinois courts and legislature dealt with the impact of the Internet Tax Freedom Act on certain tax laws aimed at remote sellers.) Currently, the Internet Tax Freedom Act only places a temporary moratorium on state and local government taxing access to the Internet or imposing multiple or discriminatory taxes on electronic commerce. This ban has been extended three times and is set to expire on Nov. 1, 2014.

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ARBITRATION CLAUSE SURVIVES EXPIRATION OF CONTRACT (WEDNESDAY, JUNE 18, 2014)

The Hilltop Companies, LLC hired Cynthia Huffman and others to review files for mortgage loans originated by PNC Bank.

Plaintiffs later filed a class action in federal court. Plaintiffs claimed they regularly worked in excess of forty hours per week, but were not compensated at the overtime rate because Hilltop classified them as independent contractors. Hilltop filed a motion to dismiss and to compel arbitration. The district court denied Hilltop’s motion, and Hilltop appealed.
Each employment relationship was governed by a professionalservices agreement. The agreement contained an arbitration clause and a survival clause. The arbitration clause read in relevant part as follows: More…
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Offset as Defense to FLSA Suit May Mitigate Unpaid Wage Claims

Our colleague Jeffrey H. Ruzal recently wrote an article entitled “Offset as Defense to FLSA Suit May Mitigate Unpaid Wage Claims,” which appears in the June 2014 issue of Hospitality Law.

Following is an excerpt:

A federal district court in Michigan recently preserved for trial the question of whether a defendant employer may mitigate its back wage liability by offsetting paid break time, which would effectively extinguish plaintiff employees’ claims under the Fair Labor Standards Act.

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More of the Same: Recently Released FDA Social Media Guidance for the Life Sciences Industry

On June 17, 2014, the U.S. Food and Drug Administration (“FDA”) continued to outline its expectations for pharmaceutical and medical device manufacturer[1] use of social media platforms to promote manufacturers’ products in two new draft guidance documents: “Internet/Social Media Platforms with Character Space Limitations—Presenting Risk and Benefit Information for Prescription Drugs and Medical Devices”[2](“Space Limitations Guidance”) and “Internet/Social Media Platforms: Correcting Independent Third-Party Misinformation About Prescription Drugs and Medical Devices”[3](“Correcting Misinformation Guidance”). In these documents, which were eagerly awaited by manufacturers for the past four years, FDA addresses acceptable methods of promoting products on microblogging (e.g., Twitter) and other platforms, such as “sponsored links” (e.g., Google Sitelinks) with character limitations, and of correcting user-generated content (“UGC”) on third-party websites. Despite the anticipation, however, FDA does not break substantial new ground in either guidance document.

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More of the Same: Recently Released FDA Social Media Guidance for the Life Sciences Industry

On June 17, 2014, the U.S. Food and Drug Administration (“FDA”) continued to outline its expectations for pharmaceutical and medical device manufacturer[1] use of social media platforms to promote manufacturers’ products in two new draft guidance documents: “Internet/Social Media Platforms with Character Space Limitations—Presenting Risk and Benefit Information for Prescription Drugs and Medical Devices”[2](“Space Limitations Guidance”) and “Internet/Social Media Platforms: Correcting Independent Third-Party Misinformation About Prescription Drugs and Medical Devices”[3](“Correcting Misinformation Guidance”). In these documents, which were eagerly awaited by manufacturers for the past four years, FDA addresses acceptable methods of promoting products on microblogging (e.g., Twitter) and other platforms, such as “sponsored links” (e.g., Google Sitelinks) with character limitations, and of correcting user-generated content (“UGC”) on third-party websites. Despite the anticipation, however, FDA does not break substantial new ground in either guidance document.

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Clark Wilson LLP lawyers named in the 2014 Canadian Legal Lexpert Directory

We are pleased to announce that Clark Wilson’s lawyers have been ranked across 5 practice area in the 2014 edition of the Canadian Legal Lexpert Directory. Congratulations go out to Mark Weintraub (Estate & Personal Tax Planning), Diane Bell (Family Law), John L. Rogers (Franchising Law), Darren Donnelly (Property Development), Peter Kenward (Property Development) and Brock Johnston (Property Leasing). The directory is the most comprehensive guide to top ranked legal talent in Canada.

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Trademark Attorney Sara Suleiman joins McDonald Hopkins

Chicago, Illinois (June 24, 2014) – Sara Suleiman has joined the Chicago office of McDonald Hopkins as an associate in the firm’s Intellectual Property Practice Group.

Suleiman joins McDonald Hopkins after nearly two years at a Chicago-based intellectual property firm where she handled all aspects of trademark preparation and prosecution for clients. She has substantial experience working with foreign counsel to manage trademark matters for U.S. clients in other countries, as well as serving as outside general counsel to multinational corporations in transactional business matters. Suleiman is experienced in conducting trademark clearance searches to advise clients on risks of potential marks, and directing worldwide and regional audits to determine strengths and weaknesses in client portfolios.

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