Legal Updates

New Regulations Implement Health Reform’s Enforcement Tools: Providers and Suppliers in Focus

by George B. Breen, Carrie Valiant, Emily E. Bajcsi, Anjali N.C. Downs, and Amy F. Lerman

On February 2, 2011, the Centers for Medicare and Medicaid Services (“CMS”) published new rules (“Final Rule”) authorized by the Affordable Care Act (“ACA”) creating a vigorous screening process for new and existing Medicare, Medicaid and the Children’s Health Insurance Program (“CHIP”) providers and suppliers; giving CMS authority to temporarily stop enrollment of new providers and suppliers; expanding the ability of CMS and States to temporarily suspend payments to providers and suppliers; establishing requirements for States to terminate providers from the Medicaid and CHIP programs; and adding several other enrollment-related provisions. Generally, the new rules are effective March 25, 2011.

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Trademark Summary Expungement Proceedings: Evidentiary Issues

In 1459243 Ontario Ltd. v. Eva Gabor International, Ltd., the Federal Court set aside the Registrar’s decision expunging a trademark under section 45 of the Trade-marks Act.  The parties agreed that the standard of review was one of correctness, unless new evidence would have materially affected the decision of the Registrar.  At issue was whether the new affidavit filed by the Applicant was hearsay and, if admissible, whether the evidence would have affected the Registrar’s decision.

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Limitations On Use of Genetic Information By Employers

EEOC issues new rules interpreting the Genetic Information Nondiscrimination Act regarding the collection of genetic information by employers. Employers should be careful about requesting or acquiring genetic information about employees.

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Union Solicitation – Strategies for the Hospitality Industry

By:  Kara M. Maciel and Evan Rosen

In recent weeks the Obama Administration’s National Labor Relations Board (the “Board”) has been very active in soliciting public comments and amicus briefs on a wide range of decisions and proposed regulations that could drastically change the labor relations landscape. One of these topics are the rules surrounding the scope of union solicitation on a non-unionized employer’s private property. 

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Municipal Utilities and the Red Flag Program Clarification Act of 2010

The Federal Trade Commission has adopted the Red Flag Program Clarification Act.

For more information please visit

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Illinois Appellate Courts Become Even More Divided Over The Appropriate Standard For Evaluating A Non-Compete Agreement

In October of 2009, the Illinois Court of Appeals for the Fourth District decided Sunbelt Rentals, Inc. v. Ehlers, 394 Ill. App. 3d 421 (4th Dist. 2009). In that opinion, the Court rejected the requirement that an employer must have a legitimate business interest in order to enforce a non-compete agreement — a requirement in Illinois Courts for decades. According to the Court in Sunbelt Rentals, an employer need only show that a non-compete agreement has a reasonable geographic limitation and lasts for a reasonable period of time in order to enforce that agreement. Since that decision, few courts have cited to Sunbelt Rentals and those that have cited to it have declined to squarely address whether it was correctly decided.

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Off-colour Trademark Decision Leaves Glaxo Purple With Frustration

In reasons issued late last year, the Federal Court of Appeal has upheld a decision to expunge a trademark registration obtained by Glaxo Group Limited (“Glaxo”) for two-tones of the colour purple as applied to the visible surface of an asthma inhaler. The decision raises interesting questions both about primary and secondary marks, and about the amount of evidence necessary to support a finding that a mark is distinctive.

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Supreme Court Rules that Fiancé of Protester Is Protected from Retaliation


EBG Partners Peter M. Panken, Frank C. Morris, Jr., Peter A. Steinmeyer, and Michael S. Kun discuss the U.S. Supreme Court’s recent decision in which the Court significantly expanded employee protections against retaliation by employers.  In Thompson v. North American Stainless, LP, __ U.S. __ (Jan. 24, 2011), the Court held that protection from retaliation extends not only to those employees who themselves oppose alleged discrimination or file a charge or otherwise participate in a proceeding, but also to the fiancé of an employee who filed a charge of discrimination against their common employer. 

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Massachusetts Legislators Refile Modified Non-Compete Legislation

Last year, I reported on the status of a new non-compete bill that, for the first time in Massachusetts, attempted to codify its non-competition law. After summarizing the details of the bill in April, I reported in October that the bill had died in Committee. However, as stated at that time, Senator Brownsberger, one of its sponsors, promised to present a new bill on the same subject in a future session. Well, the future is now.

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Delayed Request for Preliminary Injunction to Enforce Non-Compete Agreement Denied in Alabama

In a January 21, 2011 opinion and order, a federal district court in Alabama denied a request for a preliminary injunction from clothing manufacturers Fruit of the Loom, Inc. and Russell Brands, LLC, seeking to prohibit a former employee from continuing to work for a competitor. (Fruit of the Loom, Inc. and Russell Brands, LLC v. Lonnie C. Bishop, Middle District of Alabama 2:2010cv01058). Plaintiffs requested the injunction pending their lawsuit to enforce a Kentucky non-compete agreement against the former employee. Although Kentucky courts generally enforce non-compete agreements where the restraint is no greater than reasonably necessary, this case demonstrates the practical difficulties of enforcement. Even in cases where an employer is successful in an action to enforce a non-compete agreement, the benefit of the agreement can be substantially eroded where a former employee is not immediately prohibited from working for the employer’s competitor.

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