Monthly Archives: May 2011

ILN Today Post

The three little words that every lawyer wants to hear

No, we don’t expect our clients to tell us they love us!  But we do love it when clients use “subject to contract” in their negotiations.

A recent case in the UK Court of Appeal, Immingham Storage Co Ltd v Clear plc, highlights the court’s willingness to enforce a contract where all essential terms have been agreed, and where the negotiations leading up to the contract were not made under the “subject to contract” banner.

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Bigger! Better! Wares and Services Manual Expands

After a long wait, Canadian practitioners were delighted to learn this morning that CIPO has finally approved and activated more than 12,000 new entries in the Wares and Services Manual.

By way of background, in 2009 CIPO signed a memorandum of co-operation with the United States Patent and Trademarks Office, the Japan Patent Office and the Office for the Harmonization of the Internal Market (responsible for overseeing the CTM system).  These entities – known as the Trilateral Partners – have worked in a loose association over the last few decades to promote and effect harmonization in their IP registration systems.

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Government Seeks Comments on Employer Mandate Related Issues Under Health Reform

As part of the process of planning for implementation of health reform pursuant to the Affordable Care Act, the Department of Treasury, the Department of Labor and the Department of Health and Human Services are working together to develop a series of regulations and administrative guidance. One aspect of the Affordable Care Act provides that employers with 50 or more full-time employees will be considered “applicable large employers” subject to an employer mandate tax effective in 2014.  Under these rules, such large employers will be liable for excise taxes if they have any full-time employees that are certified to receive a premium tax credit or cost-sharing reduction in connection with enrollment in health insurance through a State Exchange and either the employer fails to offer to its full-time employees (and their dependents) the opportunity to enroll in an employer sponsored plan that provides “minimum essential coverage” or offers such a plan that is unaffordable.  These taxes will be assessed monthly and may be 1/12th of $2000 per full time employee (not counting the first 30 full time employees) in the case where no employer plan is offered.  Where a plan is offered but it is unaffordable (as determined under the rules), the tax scheme will be lesser of 1/12 of $3,000 times the number of employees receiving a premium tax credit or 1/12 of $2,000 times the number of full time employees (not counting the first 30 employees in the calculation).   The definition of full-time employee is critical in determining whether and, if so, to what extent an employer may incur these free-rider liabilities. 

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Best Practices for Compliance with the New ADA Regulations

The Equal Employment Opportunity Commission (“EEOC”) recently issued the final Regulations interpreting the ADA Amendments Act of 2008 (“ADAAA”).  The Regulations become effective on May 24, 2011.  It has taken the EEOC over two (2) years from the effective date of the ADAAA (January 2009) to issue the regulations.   The ADAAA and the Regulations are designed to change the focus of inquiries under the American with Disabilities Act of 1990 (“ADA”) from whether an individual’s impairment meets the definition of a “substantial impairment” that constitutes a disability, to issues of discrimination, qualifications, the interactive process, and reasonable accommodation.

The Regulations also lower the bar for finding a “substantial limitation,” and the Regulations take the position that an impairment need not last a particular length of time to qualify under the ADAAA –an impairment lasting less than six months can be “substantially limiting.”  Most ADA claims will now focus on whether the employee is qualified for the job, whether a reasonable accommodation was offered, whether the employer engaged in the interactive process to discuss possible accommodations in good faith, and whether any employer action was caused by an individual’s disability, record of disability, or being regarded as disabled.

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$12 Million in New Grant Funding to Assist Physicians with EHRs

As reported in Healthcare IT News “The Health Resources and Service Administration has made available $12 million in grants for rural healthcare network organizations to help them become meaningful users of certified electronic health records.” According to HRSA officials “the grants may support health IT activities, such as development of a strategic plan for electronic […]

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DMEPOS Updates: Proposed Rule for Direct Solicitation of Medicare Beneficiaries and Highlights from the April 2011 PAOC Meeting

In this Client Alert, which is part of our ongoing series on developments in the durable medical equipment, prosthetics, orthotics, and supplies (“DMEPOS”) industry, we examine proposed changes to the DMEPOS supplier standards and highlight recently announced updates to the DMEPOS Competitive Bidding Program (“Program”).

CMS Proposes Changes to Rule for Direct Solicitation of Medicare Beneficiaries

On April 4, 2011, the Centers for Medicare & Medicaid Services (“CMS”) published a proposed rule that would remove the definition of, and modify requirements regarding, the “direct solicitation” of Medicare beneficiaries by DMEPOS providers. CMS is accepting comments on the proposed rule through June 3, 2011.

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ILN Today Post

Fladgate advises Indian conglomerate on London hotel acquisition

Fladgate LLP has advised Indian based Bird Group, a conglomerate of independent companies in the travel and technological arenas, on the acquisition and refinancing of The Royal Park Hotel.

The Royal Park Hotel is a boutique hotel located on Westbourne Terrace, comprising three carefully restored, mid 19th-century Grade II listed townhouses. US-based Interstate Hotels and Resorts deal with the overall management, operations, sales and distribution for the hotel.

Fladgate corporate partner and head of the firm’s India Desk, Sunil Sheth, led the cross departmental team which included corporate associate Mythily Katsaris, property partner Diane Haworth, planning partner Mark Harnett, employment solicitor Naomi Oppenheim and tax solicitor John Forde.

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World Trademark Review 1000 recommends partner Toomas Taube as a leading trademark lawyer in Estonia

2011 edition of the World Trademark Review 1000 (WTR 1000) identifies partner Toomas Taube as the recommended expert in Estonia in the trademarks area.

WTR 1000: „Toomas Taube of TARK GRUNTE SUTKIENE maintains an extremely broad practice, although interviewees strongly recommend him in the trademarks area. He is known in IP circles primarily for his expert handling of trademark infringement disputes.“

The edition marks that the overarching trend in Estonian market is an increased awareness among entrepreneurs and business of the importance of protecting their trademark and other IP rights. The year 2010 has been a year of business as usual, although some have noted the a slight rise in the volume of litigation.

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Be Prepared for New EEOC Enforcement Efforts

At the recent ALI-ABA program on Advanced Employment Law and Litigation, two high level officials of the Equal Employment Opportunity Commission spoke on the major issues that will face employers at their agency this year.

One emphasis will be in the field of disability discrimination. The EEOC has issued new regulations which auger an increase in claims and cases in this area.  The definition of disability is now so broad that there may be few employees who do not reach that threshold, whether the disability is temporary, or the employee has recovered or is “regarded as” having the disability.  The emphasis for employers will be on whether the alleged victim can perform the essential functions of the job and what reasonable accommodation can be made to allow him or her to qualify for the position.  Employers are well advised to pay strict attention to job descriptions to identify the essential functions of each job and to engage in a discussion of what accommodations are “reasonable” before rejecting an applicant with a disability or refusing to make a particular accommodation on the grounds that it is not reasonable. A comprehensive analysis of the major changes in ADA enforcement can be found in the firm’s Act Now Advisory.

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Governor’s Partial Veto of Medical Marijuana Bill ESSB 5073

On Friday, April 29, 2011, Governor Gregoire exercised her partial veto powers, vetoing the portions of ESSB 5073 that would direct state employees of the Department of Health and Department of Agriculture to authorize and license commercial businesses that produce, process, or dispense cannabis.  Consequently, most of the surviving provisions of the bill afford increased […]

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