Monthly Archives: April 2012

New HazCom Standard: The Most Frequently Cited Standard in the Hospitality Industry Gets a Facelift

By Eric J. Conn and Casey M. Cosentino

For years, OSHA’s Hazard Communication Standard (“HazCom”) has been the most standard most frequently cited against hotel and other hospitality employers.

In FY 2011 37 hotel companies were cited for violations of the HazCom Standard, including, primarily, alleged failures to:

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Joel Rothman speaks to students at Northwestern University’s Medill School of Journalism, Masters in Integrated Media Program on intellectual property and advertising law


Joel B. Rothman

West Palm Beach Partner Joel B. Rothman was a guest lecturer on April 12 at Northwestern University’s Medill School of Journalism, Media and Integrated Marketing Communications  masters degree program.  Mr. Rothman spoke to two sections of a graduate class entitled “Law, Policy & Media” and addressed topics on advertising law, claim substantiation, unfair/deceptive practices, and intellectual property issues.  Northwestern’s Medill  program in Integrated Marketing Communications is an innovative program whose graduates occupy positions at advertising and marketing firms worldwide, as well as in marketing departments at Fortune 500 companies and start-up businesses.

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$100,000 HIPAA Settlement Due to Misuse of Online Calendar & More

The U.S. Department of Health and Human Services (HHS) has entered into another settlement for the violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), this time with a small physician practice that violated HIPAA while using Internet-based calendar and email services.

Phoenix Cardiac Surgery, P.C., of Phoenix and Prescott, Arizona, has agreed to pay HHS a $100,000 settlement after it was reported that the physician practice violated HIPAA by posting clinical and surgical appointments for its patients on an Internet-based calendar that was publicly accessible.  The HHS Office for Civil Rights’ (OCR) investigation also revealed that Phoenix Cardiac Surgery violated HIPAA by emailing patient information from an Internet-based email account to workforce members’ Internet-based email accounts.

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Hold the NLRB Posting

The fate of the NLRB’s employee rights poster is delayed — yet again. The Court of Appeals for the District of Columbia issued an order on April 17, 2012 delaying the posting until after it hears an appeal on its legality in September 2012.

The history of the NLRB poster is, at this point, somewhat tortured. Through rulemaking, the NLRB imposed a broad requirement that virtually all private sector employers—union and non-union—post a workplace notice advising employees of their rights–such as the right to organize–under the National Labor Relations Act.  Originally scheduled for posting in November 2011, the NLRB first delayed the notice until January 31, 2012 to give private sector employers more time to understand and comply with the requirement. Then facing legal challenges from various industry groups, the NLRB again delayed the poster until April 30, 2012. Click here to view our post, NLRB again delays union rights posting requirement.

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Rainmaking Recommendation from Jaimie Field: The Golden Rule

Here’s the latest rainmaking recommendation from expert Jaimie Field!

Everyone knows The Golden Rule: “Do unto others as you would have done unto you.”

It is oft repeated; it is said in many ways in every religious belief. It is taught to us by our parents when we are children even if we are not brought up with a religious background (“Treat others the way you want to be treated”).

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Was Buyer Of Real Estate "Ready, Willing & Able" To Perform?

Until now, there has been a split of appellate authority in New York concerning what a prospective purchaser must show in seeking damages for a seller’s repudiation of a contract for the sale of real property. It is the general rule that a prospective purchaser seeking specific performance of a real estate contract must demonstrate that it is “ready, willing and able to close.” However, there has been a split of authority concerning whether the purchaser must demonstrate that it is “ready, willing and able” to close in seeking damages for seller’s anticipatory breach of contract.

In Pesa v. Yoma Development Group, Inc. et al., 18 N.Y.3d 527, … N.Y.S.2d … (Feb. 9, 2012), the New York State of Appeals examined the issue whether prospective buyers in a damages suit must show that they were “ready, willing and able” to close the transaction – that is, but for the seller’s repudiation, the transaction could and would have closed. In reversing the Appellate Division, Second Department, the Court held that the burden of proof was the “real question” in a case like this:

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California Labor Commissioner Revises Wage Notice Form and Guidance

By Adam Abrahms

Last year, California passed the Wage Theft Prevention Act (AB 469) which amended several existing Labor Code sections and added several new ones. Most notably, in addition to criminalizing certain wages payment violations, the statute created a new mandate for California employers to provide each new employee a written notice upon hire containing individual information, including their regular rate of pay, overtime rates, and regular pay day. The law also required the California Division of Labor Standards Enforcement (DLSE) to prepare a template of the notice that employers could use for compliance.

Although the new law had an effective date of January 1, 2012, the DLSE did not provide its first template with guidance until the final week of December. Its initial attempt seemed to raise more questions than provide answers, and the DLSE issued a revision within weeks. Even its second attempt, however, raised serious concerns that the notice went far beyond the requirements of the law and invited the potential for another round of class action lawsuits and employers.

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California Nixes CEQA Climate Change Review

In an earlier blog post, we discussed a setback for the consideration of climate change impacts in “Reverse Environmental Impact Statements” as a result of a California Court of Appeal invalidating guidelines to the California Environmental Quality Act (“CEQA”). The California guidelines required that a developer’s EIR analyze any significant potential climate change impacts to a proposed mixed use real estate development project in Marina Del Rey in Los Angeles County. In striking down the guidance, the court found held that the purpose of the EIR was to identify significant effects of a project on the environment, not significant effects of the environment on the project. At the time, we were awaiting the California Supreme Court’s decision on appeal.

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Online Coupon Advertising Gets Thumps Up From The OIG

On March 27, 2012 the Department of Health and Human Services Office of Inspector General (“OIG”) released Advisory Opinion No. 12-02. The opinion stated that a proposed website that would display coupons and advertising from health care providers, suppliers, and other entities would not lead to administrative sanctions or civil monetary penalties under the federal anti-kickback statute or the prohibition against providing inducements to beneficiaries.

A corporation would operate the proposed website that would contract with providers, suppliers, and other health care entities who wish to provide coupons and advertisements on the website. The coupons can offer discounts on services or items through either percentage or dollar-off amounts; however, the coupons cannot offer free services and any coupon must apply to the entire service cost, not just the patient’s cost-sharing obligation. Any provider who wishes to pay a membership fee may post coupons on the website. Additionally, health care providers and suppliers may choose to purchase advertising space on the website.

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Latham & Watkins Hit With Malicious Prosecution Suit After Unsuccessful Prosecution Of Trade Secrets Action

Co-authored by Ted Gehring.

On April 6, 2012, Latham & Watkins was sued for malicious prosecution in Los Angeles Superior Court. The suit alleges that the Plaintiffs, William Parrish and Timothy Fitzgibbons, were former officers and shareholders of Indigo Systems Corporation, which was purchased by FLIR Systems, Inc. in 2004. From 2004 to 2006 the Plaintiffs worked for FLIR, leaving in 2006 to start their own business. FLIR retained Latham and sued them for, among other things, misappropriation of trade secrets. The trial court denied FLIR’s request for a permanent injunction, found FLIR brought the trade secrets action in bad faith, and awarded attorney’s fees and costs of $1,641,216.78, which was less than the $2,399,650.55 in attorney’s fees that were requested. The trial court’s decision was affirmed on appeal. FLIR Systems, Inc. v. William Parrish, et al., 174 Cal.App.4th 1270 (2009).

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