Monthly Archives: June 2014

DC Circuit Strongly Reaffirms the Applicability of the Attorney-Client Privilege to Internal Compliance Investigations

Especially in the District of Columbia Circuit, the home base for many fraud cases in which the government is opposed to health care providers and defense contractors, there had been considerable doubt that the attorney-client privilege attached to internal compliance investigations, particularly those investigations conducted on governmental mandate by company internal counsel. In a recent victory for companies and effective compliance, the United States Court of Appeals for the DC Circuit squarely removed that doubt in support of the application of privilege.

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Business Restructuring and Bankruptcy: A practical guide for a surety when a principal files for bankruptcy

For a surety, the bankruptcy filing of a principal raises a number of issues and several challenges, but it does not necessarily mean a loss for the surety. With some preparatory steps, coupled with prompt and careful post-bankruptcy actions, the surety can protect its rights and minimize its loss.

Upon learning that one of its principals has filed for bankruptcy, a surety should first file a notice of appearance and request for service of papers. At the beginning of a bankruptcy case, a debtor will file what are commonly referred to as “first day motions.” The purpose of the first day motions is to facilitate the continued business operations of the debtor and protect the debtor’s assets from immediate loss. These first day motions are important and will influence how a surety’s bonded contract funds are handled.

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Stuart Gerson on the Supreme Court’s Harris and Hobby Lobby Decisions

Our colleague Stuart Gerson of Epstein Becker Green has a new post on the Supreme Court’s recent decisions: “Divided Supreme Court Issues Decisions on Harris and Hobby Lobby.”

Following is an excerpt:

As expected, the last day of the Supreme Court’s term proved to be an incendiary one with the recent spirit of Court unanimity broken by two 5-4 decisions in highly-controversial cases. The media and various interest groups already are reporting the results and, as often is the case in cause-oriented litigation, they are not entirely accurate in their analyses of either opinion.

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Anatomy of a Business Case – Integrating P3 Discipline into Law Firm Business Strategy

We had high hopes for the final session on the first day of P3, with my friends Tim Corcoran (@tcorcoran), John Byrne (@johnmbyrne), Catherine MacDonagh (@CathMacDonagh) and Amy Hrehovcik (@hRovingChik) presenting – and we weren’t disappointed!

As per the attendee guide: 

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"Material Change" Defense To Enforcement Of A Non-Compete In Massachusetts Still Alive And Well, But There Remain Unanswered Questions

For some time, I have been following the evolution of the “material change” defense to enforcement of a non-compete agreement in Massachusetts. Recently, it has been gaining traction, but there are still unanswered questions.

The doctrine was first introduced in F.A. Bartlett Tree Expert Co. v. Barrington by the Massachusetts Supreme Judicial Court in 1968. However, it was not applied with any consistency by Massachusetts courts until very recently when a number of trial level courts and a Massachusetts Federal District Court held that a restrictive covenant is not enforceable if the employee’s job duties, compensation or employment relationship substantially changed between the time the employee signed the initial non-compete agreement and the time the employee left the company. In short, these courts have refused to issue preliminary injunctions to employers of former employees who have been hired by competitors on the grounds that there was not a likelihood of success on the merits (one of the critical requirements that parties seeking preliminary injunctive relief must demonstrate to the court). Although the Eastern District of New York in Iron Mountain Information Management, Inc. v. Taddeo, applying Massachusetts law, adopted the doctrine in 2006, other states have not embraced the “material change” defense.

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ILN Today Post

Trade mark infringement through use of key words in SEO and online advertising?

Google has announced that from 28 July 2014, it will change its policy in Australia and New Zealand as it applies to the use of trade marked terms in online advertisements by resellers of goods, sellers who offer compatible components or parts, and advertisers who provide information about goods and services.

In line with Google’s policy for the United States of America, United Kingdom, Canada and Ireland, Google’s policy will provide that advertisers in Australia may use a trade mark in the text of such advertisements, but only if the advertisement complies with the requirements in Google’s policy. More…

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Heathcare Alert: OIG warns of anti-kickback statute violations in laboratory payments to referring physicians

On June 25, 2014, the Office of Inspector General (OIG) issued a special fraud alert entitled “Laboratory Payments to Referring Physicians” which deals specifically with laboratories paying compensation to physicians and group practices for blood specimen collection, processing and packaging activities, as well as the submission of patient data to a database or registry. 

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Canada High Court Decision Impacts Energy Project Development

The Supreme Court of Canada (SCC) by unanimous decision on June 26, 2014 in the case of Tsilhqot’ in Nation v. British Columbia declared for the first time “Aboriginal title” in Canada for the Tsilhqot’in Nation over tract of land in the interior of British Columbia. This case furthers a long line of decisions on Aboriginal rights and title.

In Tsilhqot’in, the SCC prescribes the meaning of Aboriginal title and articulates new tests for establishing it. The decision lacks clarity on the practical application of its ruling. The result, at least in the short run, is uncertainty, and additional clarity from the courts will be required. In the meantime, if major projects are to proceed, a much higher level of cooperation among First Nations, government and project proponents will be required.

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Ontario Appeal Court Reduces 70 Year Old’s Dismissal Notice Period By Six Months

In a recent ruling, the Ontario Court of Appeal reduced the wrongful dismissal award of a 70 year old employee by 6 months.
In the case of Kotecha v Affinia Canada ULC (2014 ONCA 411).  The Court reduced the motion judge’s award of a 24 and one-half months to 18 months on the basis that “there were no exceptional circumstances that would justify” the longer award.
Affinia is a manufacturer of auto parts.  Kotecha was 70 years old and had worked for Affinia for 20 years as a machine operator.  He installed rivets on brake pads.  At the time of his dismissal, Kotecha was earning $18.23/hour.  Based on a 40 hour work week, this wage equated to approximately $38,000.00 per year. 
Affinia admitted that Kotecha was dismissed without cause.  Kotecha brought a motion for a summary judgment to fix the length of the notice requirement and his damages. 
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Week of June 23, 2014 on ILNToday – A Roundup!

It’s a beautiful Friday here in the northeast with low humidity and low-ish temps! I’m still looking forward to fall, but today’s not half bad.

So before you head out for the weekend, grab your coffee and take a look through these top posts from ILNToday!


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