Monthly Archives: October 2011

Healthcare Alert: Technical component grandfather provision

The grandfather provision for technical component of anatomic pathology services provided to Medicare inpatients and outpatients of “covered” hospitals is scheduled to sunset on December 31, 2011.  This grandfather provision permits an independent laboratory to bill the Medicare Part B carrier for technical component of anatomic pathology services provided to Medicare inpatients and outpatients of a hospital that outsourced its technical component of anatomic pathology services as of July 22, 1999 to an independent laboratory under an arrangement pursuant to which the independent laboratory billed the Medicare Part B carrier directly for such outsourced services.
Without Congressional intervention, this grandfather provision will end at the end of this year, and independent laboratories will no longer be able to bill their Medicare Part B carriers for the technical component of anatomic pathology services provided to the Medicare inpatients and outpatients of these covered hospitals.  Rather, the laboratories will be required to bill the hospitals.  The hospitals will not receive any additional payments for such services for Medicare inpatients, although the hospitals will be able to bill for the outpatient technical component services under the Medicare outpatient prospective payment system.
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Props in the Galaxy

In 1976 a struggling art school graduate called Andrew Ainsworth was asked to give a visual dimension to the drawings and paintings of an artist … “.  So begins an interesting article by my partner Eddie Powell concerning the recent Supreme Court decision in Lucasfilm v Ainsworth [2011] UKSC 39.
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Res Nullius?

When and where I studied law, the Roman Law course was compulsory.  In retrospect, all I got from it was a collection of Latin legal terms.  The use of legal Latin became politically incorrect in the 1990s, culminating in the Civil Procedure Rules, which even changed “writ” to “claim form“.  Perhaps a new generation of lawyers brought up on Harry Potter will restore the balance, but I digress.
A “res nullius” in Roman Law was a thing that belonged to no one, and yet, I was taught, there was no such thing in English Law, except perhaps a corpse.  If an object’s owner cannot be identified, it does not make the object ownerless, and therefore ownership cannot be acquired by the taking.  That can make some objects problematical, and one such object is on a plinth outside the Houses of Parliament.

I refer to Henry Moore’s sculpture “Knife Edge Two Piece” which is the subject of an interesting article by Martin Bailey in The Art Newspaper.

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California Court of Appeal May Get An Opportunity To Rule On Constitutionality Of PAGA

by Michael Kun

As we have mentioned previously on thisblog, the latest wave of wage-hour class actions to hit California employers is based on a claim that employees were not provided “suitable seating” under an obscure provision of California’s Wage Orders.  To avoid having these cases removed to federal court,and to avoid the burden of establishing the elements for class certification, many plaintiffs’ counsel have taken to filing these lawsuits not as class actions, but as representative actions under California’s Private Attorneys General Act (“PAGA”).

PAGA — sometimes referred to as the “Bounty Hunter Law” or the “Sue Your Boss Law” — allows a single employee to pursue claims on behalf of all “aggrieved employees,” with potential recovery of up to $100 per employee for the first violation and $200 per employee for each subsequent violation.  The potential recovery can be enormous, and a plaintiff need not certify a class.

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The Miami office of McDonald Hopkins law firm expands, adding intellectual property attorney Amy Spagnole

Miami, Florida, (October 20, 2011) – Amy B. Spagnole has joined McDonald Hopkins LLC as Of Counsel in the Intellectual Property Practice of the business advisory and advocacy law firm.  She is based in the firm’s Miami office, which opened in April 2011 and is the firm’s second office in Florida.  Spagnole has extensive experience in strategic portfolio development, protection and enforcement of trademarks, copyrights and domain names, merchandise licensing, and e-commerce transactions.

Representing clients across a broad range of industries, Spagnole develops cost-effective intellectual property registration and protection strategies designed to maximize the return on investment related to brand management. During her career, Spagnole has served as a partner in a prominent New England law firm and was the vice president and general counsel for a sports entertainment company. She has also served as an adjunct faculty member at Suffolk University Law School.

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NLRB Finds Facebook Posting Termination Lawful, but Unrelated Handbook Policies Overly Broad

by Anna A. Cohen

On September 28, 2011, a National Labor Relations Board (“NLRB”) administrative law judge (ALJ) found that Knauz BMW lawfully terminated the employment of Robert Becker, a salesperson, after he posted pictures and comments on his Facebook page about two different workplace incidents — an automobile accident and a dealership sales event.  The judge also found that several Employee Handbook policies, unrelated to social media postings, contained overly broad language.  Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, Case No. 13-CA-46452 (Sept. 28, 2011).

The first incident Becker posted on his Facebook page concerned an accident at a Land Rover dealership also owned by Knauz on an adjacent property.  Becker posted pictures of the accident, as well as comments such as “This is your car:  This is your car on drugs.”  The same day, Becker also posted pictures of a dealership sales event.  Becker and other salespersons disagreed with the General Sales Manager’s choice of food and beverages for the event, including hot dogs and chips.  Becker posted pictures of the other salespersons with the food and beverages, as well as several comments on his Facebook page, such as:

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ILN Today Post


For many years, the Federal Trade Commission (FTC) has required that sellers who solicit buyers to order merchandise through mail or telephone have a reasonable basis to expect that they can ship ordered merchandise within the time frame they advertise or, if they do not specify a time frame, within 30 days.

When a seller cannot ship within the promised time, the FTC’s Mail or Telephone Order Merchandise Rule (the Rule) also requires that the seller either obtain the buyer’s consent to the shipping delay or refund payment for the unshipped merchandise.

Click here to read the full alert >>

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IRS Announces Voluntary Classification Settlement Program

by Dean L. Silverberg, Jeffrey M. Landes, Susan Gross Sholinsky, and Jennifer A. Goldman

On September 21, 2011, the Internal Revenue Service (“IRS”) announced a new program that will give businesses the opportunity to resolve prior worker classification issues by voluntarily reclassifying their non-employee workers (such as consultants, freelancers, and independent contractors) as employees for federal employment tax purposes. Officially called the “Voluntary Classification Settlement Program” (“VCSP”), this program is part of a larger “Fresh Start” initiative at the IRS to aid taxpayers and businesses in addressing their federal tax liabilities.

Read the full advisory online

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G2 Intelligence–Lab Institute 2011: The Secret Behind Laboratory Business Success–Strategies for Hiring and Retaining Key Personnel (James Giszczak)

The Secret Behind Laboratory Business Success: Strategies for Hiring and Retaining Key Personnel and Protecting Lab Assets

Begin your Lab Institute experience with a workshop that will tackle some of the hottest issues facing the clinical lab industry. Leading labs know that having the right people in the right roles is critical, and our expert speakers will discuss how your lab can develop a strategy to attract the right people and retain your best people, even during times of change. Designed to meet the needs of today’s lab business and pathology practices of all sizes, this intensive morning session will also explore how to protect lab assets and address data privacy concerns. Don’t miss this opportunity to better understand the critical role of human capital and lab assets in your business at a time when health care services are becoming increasingly integrated.

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Business Restructuring and Bankruptcy Alert: Receivership sales free and clear of liens in Cuyahoga County…

A new Court of Common Pleas decision creates uncertainty

Ohio common law decisions regarding a receiver’s ability to sell property “free and clear” of all liens appear to have more often than not supported the proposition that a receiver can sell property free and clear of liens so long as the receiver complies with procedural notice and due process requirements. However, a recent decision authored by Cuyahoga County Magistrate Stephen M. Bucha III, and adopted by Common Pleas Judge Timothy J. McGinty on June 10, 2011, in the matter of The Huntington National Bank v. Caitlin & Bridget Cunningham, LLC, Cuyahoga County Court of Common Pleas, case number CV-10-717066, seems to reach a different conclusion. In the Huntington case, the court stated that it does not have the authority to authorize a receiver to sell real property free and clear of liens without the express consent of all parties. This is a stark departure from recent judicial interpretations of a receiver’s ability to sell property free and clear of liens.

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