Monthly Archives: October 2016

Transgender Teenager’s Death Leads to ACA § 1557 Discrimination Suit Against Hospital

Kyler Prescott was a 14 year old transgender boy who was receiving puberty-delaying medication to help him transition.  Shortly before Kyler’s death he had “suicidal ideation” and was taken to Rady Children’s Hospital – San Diego in April 2015.  The hospital has a Gender Management Clinic to provide services to children with gender dysphoria and related issues.  A lawsuit under the ACA’s non-discrimination provision, § 1557, alleges that after admission, despite assurances that he would be referred to with masculine pronouns, hospital employees referred to Kyler as a girl.  The suit claims that the hospital’s actions discriminated against Prescott “resulting in his inability to access necessary services and treatment during a dire medical crisis.” The federal lawsuit, filed in the Southern District of California, further alleges that the use of female references exacerbated his condition and that he thereafter had further difficulties and ultimately committed suicide.

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FAS exceeds authority when issuing clarifying provisions of Federal law “On advertising”

It is a rather known fact that some time ago Federal Antimonopoly Service of the Russian Federation (hereinafter – “FAS of Russia”) issued a letter dated 28.05.2015 N AD/26584/15 on clarification of certain provisions of the Federal law N 38-FZ “On advertising” dated 13.03.2006 (hereinafter – “Letter”).

In the Letter FAS provided clarifications in relation to the terms contained in para. 8 art. 24 of the aforementioned law, in particular normative content of the term “methods of prevention, diagnostics, treatment and medical rehabilitation”. These clarifications of FAS formed the subject matter of a specific case in the Supreme court of the Russian Federation and were recognized as invalid by the Decision of Supreme court of the Russian Federation dated 18.08.20161.

In particular, the Supreme court of the Russian Federation ruled:

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Supreme Court Tosses Finding of Contempt Against Student Leader

The Supreme Court of Canada released this week its decision in a case overturning a ruling in which a court in Quebec had found a student leader guilty of contempt of court – Morasse v. Nadeau-Dubois 2016 SCC 44.

 The background goes back to the spring of 2012, when massive and sustained student protests took place in the province of Quebec over the issue of proposed increases in university tuition fees.  The increases were announced as part of the budget introduced by the provincial government.  Several student organizations which were opposed to the increases organized protests. 


The protests paralyzed several post-secondary institutions.  Classes at several institutions were cancelled.  Student organizations held votes declaring themselves to be “on strike”.  Picket lines were formed at several universities and CEGEPs.  Students and teachers were prevented from entering the buildings in which classes were to be held.  As a result, several injunctions were sought to resist these blockages and help ensure the continuation of the school year.


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Week of October 24, 2016 on ILNToday – A Roundup!

roundupIt’s hard to believe that we’re already at the end of October, but that is indeed the case with Halloween on Monday and the need to start planning for 2017 in earnest looming large. But before you rush back into your day, take a few moments to check out the top posts from this week on ILNToday!

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White House Call to Action Could Spur More States, Including New York, to Act Against Non-Competes

Political winds disfavoring non-compete agreements for low wage and rank-and-file workers continue to blow, and appear to be picking up speed.

On October 25, 2016, the White House took the unusual step of issuing a “Call to Action” to states regarding non-compete agreements, as part of the President’s initiative to stoke competition across the economy.  Calling non-competes an “institutional factor that has the potential to hold back wages and entrepreneurship,” the Call to Action seeks to reduce the misuse of non-compete agreements nationwide.

President Obama called on state policymakers to join in pursuing best-practice policy objectives, including:

  1. Banning non-compete clauses for categories of workers (such as low wage workers or workers laid off or terminated without cause);
  2. Improving transparency and fairness of non-compete agreements; and
  3. Incentivizing employers to write enforceable contracts (i.e., discouraging overreaching provisions) by, for example, promoting the “red pencil doctrine” which renders contracts with unenforceable provisions void in their entirety.
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Talking Tax – Issue 55

ATO updates

Warning on unusually high deductions

The ATO has issued a media release warning taxpayers that there will be a focus this year on higher than expected deductions.

The warning comes in the final week before the lodgement deadline and aims to ensure that those planning to lodge learn from the mistakes of others.

Assistant Commissioner Graham Whyte has stated that enhancements in technology and data sharing have increased the ATO’s ability to check work-related expense claims. He says that if a claim appears higher than usual it will be checked with an employer.

The media release gives examples of deductions that have been disallowed, including cases where tax returns completed by accountants were verified with employers and found to have been exaggerated.

The ATO’s key compliance suggestions are:

  • keep a record to prove the deduction
  • the deduction must be directly related to earning income
  • the taxpayer must not have been reimbursed for the expense
  • be aware of what is and what is not deductable.

This is a valuable warning that those completing their tax returns in the final week of the lodgement period will need to be diligent about verifying and substantiating their deductions.

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What does the Advertising Self-Regulatory Council Dealing with in 2016?

There aren’t a lot of rules on the Internet. The World Wide Web is a wild west environment where the standard rules regarding sales tax, privacy, and decorum don’t apply. All of which makes it seem like a strange place for self-regulation. And yet, that’s the mission of the Advertising Self-Regulatory Council, the industry body that regulates advertising not only on traditional media such as print, TV, and radio, but also online.

Given how quickly advertising has expanded on Internet sites and social media, that’s not just a tricky job—it’s a very big one. This year, the Commissioner of the Federal Trade Association delivered a keynote at a summit hosted by one of ASRC’s constituent organizations (the Electronic Retailing Self-Regulation … Continue Reading

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Wage Fixing and No Poaching Agreements: New Antitrust Guidance Threatens Criminal Prosecution

Our colleague Daniel J. Green, an Associate at Epstein Becker Green, has a post on the Trade Secrets & Noncompete Blog that will be of interest to many of our readers in the technology industry: “Aggressive New Antitrust Guidance for Human Resources Professionals Threatens Criminal Prosecution for Certain Unlawful Wage Fixing and No Poaching Agreements”

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Aggressive New Antitrust Guidance for Human Resources Professionals Threatens Criminal Prosecution for Certain Unlawful Wage Fixing and No Poaching Agreements

Following up on a string of civil enforcement actions and employee antitrust suits, regarding no-poaching agreements in the technology industry, on October 20, 2016 the Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) issued Antitrust Guidance for Human Resources Professionals (the “Guidance”). The Guidance outlines an aggressive policy to investigate and punish employers, and individual human resources employees who enter into unlawful agreements concerning employee recruitment or retention.

The Guidance focuses on three types of antitrust violations:

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    Davis Malm Hosts Fall 2016 “Celebrating Success” Event

    (L-R) Francisco Urena (MA Secretary of Veterans’ Services), Allan A. Ryan, Jr., Esq. (Veterans Legal Services), Stephen DiPrete (Eastern Bank), U.S. Congressman Seth Moulton, Tony Hewett (Davis Malm), Nate Daviau (Songwriter), Clint Valladares (Berklee).

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