Legal Updates

The Luri Decision – One Small Step for Ohio Employers . . .

The Ohio Court of Appeals for the Eighth District (Cuyahoga County) dramatically reduced a $43.1 million punitive damages award to $7 million in the case of Luri v. Republic Services, Inc., Case No. 94908, 2011-Ohio-2389 (May 19, 2011) . At trial, the Luri jury imposed a $46.6 million verdict, including $43.1 million in punitive damages for Luri’s claim of retaliation pursuant to Ohio’s civil rights statute, R.C. Chapter 4112. The appellate court held, however, that a statutory limit on punitive damages applied to Luri’s employment claim. The limitation on punitive damages, a provision of R.C. §2315.21, was enacted in 2005 as part of a comprehensive tort reform bill. There has been much speculation as to whether and to what extent various tort reform provisions will apply in employment cases. While the Ohio Supreme Court has yet to weigh in and many questions remain unanswered, the Luri decision is a welcome victory for Ohio employers. For a more detailed discussion of Luri and what it means, please read our Alert, The sky may not be the limit for an employee-plaintiff.

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The FCPA and the Health Care Sector: Entering an Era of Heightened and Unprecedented Enforcement

The FCPA and the Health Care Sector: Entering an Era of Heightened and Unprecedented Enforcement By Stuart M. Gerson, Esq., and Dale C. Van Demark, Esq.

Epstein, Becker & Green

Throwing down the gauntlet to health care providers, and most significantly, their executives who increasingly are doing business overseas, Acting Deputy Attorney General Gary G. Grinder recently told the National Institute on Healthcare Fraud that: “In some foreign countries, nearly every aspect of the approval, manufacture, import, export, pricing, sale and marketing of a drug product may involve a ‘foreign official’ within the meaning of the Foreign Corrupt Practices Act. … [The Depart- ment of Justice] will not hesitate to charge [health care] companies and their senior executives under the FCPA if warranted to root out foreign bribery in the industry.”1

For the full article, read the PDF here.

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Bribery Act 2010 – after a long wait, are you ready?

On 1 July 2011, the much anticipated Bribery Act 2010 (the Act) will come into force. The Act will impact on all commercial organisations, to a greater or lesser degree, and so, if you haven’t already turned your mind to what it means for your organisation, now is the time.

A detailed explanation of the main offences under the new Act can be found in our legal update at: www.fladgate.com/BriberyAct2010.

Three of the key offences under the Act will by now be familiar to most people and are largely restatements of existing law:

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Labor and Employment Alert: The sky may not be the limit for an employee-plaintiff

The sky may not be the limit for an employee-plaintiff

Ohio Court dramatically reduces a punitive damage award by holding that tort reform limits on punitive damages apply in statutory employment cases.
Ohio employers recently enjoyed a welcome victory when an Ohio court held that a statutory limit on punitive damages applies in cases brought under Ohio’s civil rights statute, Revised Code Section 4112. For the specific employer litigating the issue, this resulted in the dramatic reduction of a $43.1 million punitive damages award to $7 million.
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B&F newsletter, spring 2011

FINANCIAL COLLATERAL ARRANGEMENTS IN THE BALTIC STATES

A financial collateral arrangement provides effective security to the creditor with minimal cost since it may be included in a master agreement or general terms and conditions without certification, registration, perfection or other assigned costs. The enforcement of financial collateral arrangements constitutes a significant advantage of this type of agreements over pledges and is in fact viewed as a major characteristic distinguishing it from agreements on pledge of cash collateral without a title transfer. The aim of a financial collateral arrangement is established in the preamble of Directive 2002/47/EC which provides that Member States should ensure the inapplicability of certain provisions of insolvency law to financial collateral arrangements. It follows that the protection of financial collateral arrangements in case of insolvency (bankruptcy and restructuring) is essential in this directive and the Member States should secure their enforceability. The right of the beneficiary of financial collateral to unilaterally realise the financial collateral in insolvency proceedings does not cease from the start of insolvency. Another difference in comparison with other creditors (including the creditor of an agreement on pledge of cash collateral) is the possibility to set off the monetary claim against the bankrupt undertaking.

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B&F newsletter spring 2011

Hannes VallikiviInese HazenfusaVilius BernatonisRokas Bukauskas

FINANCIAL COLLATERAL ARRANGEMENTS IN THE BALTIC STATES

A financial collateral arrangement provides effective security to the creditor with minimal cost since it may be included in a master agreement or general terms and conditions without certification, registration, perfection or other assigned costs. The enforcement of financial collateral arrangements constitutes a significant advantage of this type of agreements over pledges and is in fact viewed as a major characteristic distinguishing it from agreements on pledge of cash collateral without a title transfer. The aim of a financial collateral arrangement is established in the preamble of Directive 2002/47/EC which provides that Member States should ensure the inapplicability of certain provisions of insolvency law to financial collateral arrangements. It follows that the protection of financial collateral arrangements in case of insolvency (bankruptcy and restructuring) is essential in this directive and the Member States should secure their enforceability. The right of the beneficiary of financial collateral to unilaterally realise the financial collateral in insolvency proceedings does not cease from the start of insolvency. Another difference in comparison with other creditors (including the creditor of an agreement on pledge of cash collateral) is the possibility to set off the monetary claim against the bankrupt undertaking.

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Supreme Court of Ohio: Firing worker with an industrial injury who hasn’t yet filed a workers’ compensation claim may still be workers’ compensation retaliation

Gavel-Wikimedia Commons.bmpOn Thursday, June 9th, Ohio’s Supreme Court held that an employee, who is terminated after sustaining a work-related injury, though prior to filing a workers’ compensation claim, may still pursue a workers’ compensation retaliation claim against his former employer. This case arose as Ohio’s Workers’ Compensation Retaliation Statute, when read in conjunction with Ohio’s applicable case law, left a gap in coverage for employees who sustained an industrial injury, but were terminated prior to filing a workers’ compensation claim. The Court filled this gap with what it called “a common-law tort claim for wrongful discharge in violation of public policy”. Thus, the Court attached the right to pursue a workers’ compensation retaliation claim to the work-related injury and not the filing of the workers’ compensation claim.

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The Future of Employment Arbitration Agreements – The Legacy of AT&T Mobility LLC v. Concepcion

By:  Betsy Johnson and Evan J. Spelfogel

 

Employment litigation is growing at a rate far greater than litigation in general. Twenty-five times more employment discrimination cases were filed last year than in 1970, an increase almost 100 percent greater than all other types of civil litigation combined. Case backlogs at the U.S. Equal Employment Opportunity Commission (“EEOC”) and in state and federal courts and administrative agencies nationwide number in the hundreds of thousands. Class and collective wage and overtime cases are inundating the courts. These types of cases now even outnumber discrimination cases. Most of the employment-related cases pending in the courts involve jury trials with lengthy delays and unpredictable results.

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Overview of Methodology for Determining PSA Shares for Accountable Care Organizations Participating in the Medicare Shared Savings Program

by Patricia M. Wagner and Ross K. Friedberg

Among the criteria that the “Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program” (“Proposed Statement”) uses to evaluate an accountable care organization’s (“ACO’s”) risk of an antitrust challenge is the ACO applicant’s “market share” within each of its service lines. The market share is a measure of the share of services an ACO participant provides in its Primary Service Area (“PSA”) relative to other providers. The share of services that each ACO participant provides in its PSA is the key factor that the agencies are proposing to use for determining whether an ACO will receive “Safety Zone” protection from the antitrust laws or be subject to mandatory expedited review from the agencies in order to participate in the Medicare Shared Savings Program. To assist with the PSA analysis, we have provided in this alert a step-by-step description of the proposed method for calculating PSA shares as well as an illustration of the steps involved in calculating PSA shares.

Read the full alert online

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Hospital Deadline for Medicare EHR Incentive Payments Near

For those hospitals interested in applying for the Medicare EHR Incentive Payments for 2011, the last day to begin the 90-day reporting period is July 3rd.  Hospitals and CAHs must demonstrate meaningful use for 90-days during the 2011 fiscal year (which ends September 30, 2011).  Hospitals and CAHs have until November 30, 2011 to register and […]

For more information please visit www.omwhealthlaw.com or click on the headline above.

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