Legal Updates

Building and Construction Update

Proportionate Liability – still causing insurance havoc

By Ray Giblett and Scott Laycock of Gadens Lawyers, Sydney

It is now several years since the commencement of proportionate liability in New South Wales[1] yet it continues to wreak havoc in the allocation and management of risk in a variety of contexts.  This is particularly so in the context of construction projects where parties routinely contract out of proportionate liability in an attempt to avoid a multiplicity of claims arising when something goes wrong.  read more

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Judge Denies TRO In Chicago Hot Dog/Trade Secrets War

Vienna Beef, the official hot dog of the Chicago Cubs, recently struck out in its effort to obtain a temporary restraining order against hot dog rival Red Hot Chicago, Inc. and the grandson of one of the founders of Vienna Beef, Scott D. Ladany.

Among other beefs in its federal court lawsuit, Vienna Beef accused the defendants of misappropriating trade secrets by using Vienna Beef recipes. As evidence of misappropriation, Vienna Beef pointed to Red Hot Chicago advertising material which made reference to using “family recipes” – that is, recipes now owned by Vienna Beef, rather than the defendants.

In response to Vienna Beef’s motion for a temporary restraining order to halt such alleged trade secret misappropriation, Ladany submitted an affidavit stating that Red Hot Chicago does not use the Vienna Beef recipe developed by his grandfather and that Red Hot Chicago’s recipe was in fact independently developed.

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Immigration Alert: June 2011

U.S. Supreme Court Sustains Constitutionality of Arizona Legal Workers Act

USCIS Updates FY 2012 H-1B Cap Count

Grand Jury Investigates Misuse of B-1 Visa Classification

DOS Issues Revised Online Nonimmigrant Visa Application (DS-160)

NLRB’s Counsel Updates Regions on Immigration Issues in NLRB Proceedings

FTC Settles Charges Regarding Privacy Concerns About Form I-9 Software Product

USCIS Proposes Enhancements to EB-5 Program

DOS, USCIS, and CBP Issue Summer Travel Reminders for Foreign Nationals

ICE and DOJ Continue Immigration-Related Enforcement Actions

Congress and State Legislatures Propose New Immigration Legislation

DOS Issues July 2011 Visa Bulletin

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HEALTH REFORM: OPM RFI Regarding Multi-State/National Insurance Plans

On June 16, 2011, the Office of Personnel Management (“OPM”) released a Request for Information (“RFI”) regarding the requirements of Section 1334 of the Affordable Care Act (“ACA”)[1] for OPM to contract with health insurers to offer multi-state qualified health plans (“MSQHPs”) to the individual and small-group markets. The purpose of the RFI is to provide OPM with information that will allow it to better understand the “interests and capabilities” of health insurance issuers that are potential MSQHP contractors. The contours of OPM’s implementation of the MSQHP contracts will have a significant impact on health insurance issuers that will participate in the state-based “American Health Benefit Exchanges” (“Exchanges”) for the individual and small-group markets.

This alert will describe the areas of feedback requested by OPM regarding implementation of MSQHPs. Although this document is not a Request for Proposal, the questions posed by the RFI are designed to aid OPM in the development of procurement documents. The RFI informs respondents that those who provide a “thoughtful, detailed response” may be invited to a one-on-one meeting with OPM for a more in-depth discussion. Accordingly, those health insurance issuers with a serious interest in participating as a MSQHP, either individually or as a member of a joint venture or teaming arrangement, would be well advised to submit a thoughtful response to secure the maximum opportunity to shape the procurement process. Respondents may protect the proprietary information in their response by marking it with a restrictive legend, and any disclosure by OPM to third parties for evaluation purposes will be subject to confidentiality obligations.

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EEOC Continues to Challenge "Inflexible Leave" Policies and Reaches a $1.3 Million Settlement with Denny’s

By:  Kara M. Maciel and Casey Cosentino

The U.S. Equal Employment Opportunity Commission (EEOC) continues its aggressive quest to challenge “inflexible” medical leave policies, as Denny’s Inc. agreed earlier this month to pay $1.3 million to settle a nationwide class action lawsuit. Denny’s also entered into an injunction barring its restaurants from future violations of the Americans with Disabilities Act (ADA), including denying disabled employees reasonable medical leave and retaliating against employees for bringing disability discrimination claims.

The EEOC filed the class action in 2009 in federal court in Maryland alleging, among other things, that Denny’s violated the ADA by enforcing a leave policy that automatically denied additional medical leave beyond a predetermined limit, even when the employee requested additional leave as a reasonable accommodation. This “inflexible” leave policy, common to many employers, led to the termination of the employees.

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Jump Start My Heart – The Obama administration goes on the offensive to appease organized labor by proposing to amend the "persuader rule"

For well over 40 years, the rule for labor consultants and management attorneys has been that if those individuals deal directly (i.e., face-to-face) with an employer’s employees in connection with labor relations matters, then the employer must fill out and file with the United States Department of Labor (DOL) an LM-10, and the attorney or consultant must fill out and file an LM-20.  In contrast, consultation with the employers and their managers about the best way to communicate with rank-and-file employees was deemed “advice” and not subject to disclosure on the LM-10 and LM-20 forms.

In its June 21, 2011 proposed rule modifications, the DOL’s Office of Labor-Management Standards embarked on a mission to require employers and their advisors to disclose to the public the details of their consultations relating to labor relations, including those consultations with employers and their managers, as well as direct dealings with rank-and-file employees.  In doing so, the DOL concluded that the regulation has not been properly applied.  The DOL states that it does not intend to infringe upon the attorney-client privilege, and parties would be able to limit their descriptions to preserve the privilege.

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Rachel Yaffe was featured in "What is a Radiologist’s Role in an ACO?," published by RBMA

What is a Radiologist’s Role in an ACO?

By: Rachel Yaffe

Accountable care organization (commonly referred to as an ACO) is the new buzz phrase swarming the medical community. Since ACOs are still a relatively new concept, radiologists are wondering how they can play a role in an ACO.

An ACO is an organization comprised of a variety of healthcare providers who work together to manage and coordinate patient care, and is held accountable for the quality and cost of such care. The financial attractiveness of the ACO model is that the organization will have the opportunity to share in the cost savings resulting from the provision of evidence-based, coordinated patient care, which shared savings will ultimately trickle down to the ACO’s members. A typical ACO will include, at a minimum, primary care physicians and specialists. While hospitals are likely to be involved in ACOs, and may, in many instances, even drive ACO formation, hospital participation is not required.

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Elizabeth Sullivan was featured in "FDA Approves First Mobile Application for Diagnostic Radiology," published by RBMA

FDA Approves First Mobile Application for Diagnostic Radiology

By: Elizabeth Sullivan

Earlier this year, the FDA cleared the first mobile device application allowing physicians to view diagnostic radiology images on iPhones and iPads. The mobile application, Mobile MIM, allows a physician to view CT scans, MRI scans, and nuclear medicine technology, such as PET scans, through his or her mobile device. While the FDA has approved the mobile application, it is not intended to replace a full workstation and is indicated only for use where the physician does not have access to a workstation.

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Elizabeth Sullivan was featured in "Medicare Reimbursement for Beneficiaries with Permanent Pacemakers," published by RBMA

Medicare Reimbursement for Beneficiaries with Permanent Pacemakers

By: Elizabeth Sullivan

The Centers for Medicare & Medicaid Services (CMS) have proposed modifying the current National Coverage Determination Manual to cover reimbursement for MRIs performed on Medicare beneficiaries with permanent pacemakers.

In its Proposed Decision Memo for Magnetic Resonance Imaging (MRI) (CAG – 00399R3) (“Memorandum”), CMS issued the statement that “evidence is adequate to conclude that magnetic resonance imaging (MRI) improves health outcomes for Medicare beneficiaries with implanted permanent pacemakers when . . . used according to the FDA-approved labeling for use in an MRI environment.”

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Slovakia – 80 Percent Tax on Emission Allowances

Potential repeal of the European Emission Allowance Trading Scheme in practice

The consequences of the economic crisis currently dominate European politics. Most member states approve different measures to consolidate their public finances. In Slovakia, an increase of income to the state budget is also expected, among other things, by a new tax on emission allowances.

The tax on emission allowances has been introduced in Slovakia, entering into force on January 1, 2011. Under the new legislation greenhouse gas emission allowances allocated free of charge according to the National Allocation Plan approved for the trading period 2008 to 2012, are taxed at a high rate of 80 percent. The new tax on emission allowances has led to much professional debate regarding its compliance with the Slovak Constitution, binding international treaties and EU law. In the near future the Slovak Constitutional Court will hear these issues.

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