North America

HEALTH REFORM: CMS Holds First Teleconference Related to Sunshine Law for Pharmaceutical, Biotechnology, and Medical Device Companies

On March 24, 2011, the Centers for Medicare & Medicaid Services (“CMS”) held a teleconference,[1] titled “Transparency Reports and Reporting of Physician Ownership or Investment Interests.[2] During the teleconference, CMS provided interested parties with the opportunity to publicly comment on certain topics related to the implementation of Section 6002 of the Patient Protection and Affordable Care Act (“PPACA”). These topics included (1) additional forms and natures of payments and transfers of value to be considered by CMS for reporting; (2) accessibility to, and usability of, the reported data for consumers; and (3) mechanisms for accurate, efficient, and cost-effective reporting of data. CMS announced that “draft regulations” will be issued later this year and that interested parties would have the opportunity to also comment on these draft regulations. See “Federal Transparency Is Now a Reality: Challenges and Opportunities for Pharma, Devices, and PBMs” for an overview of Section 6002 of PPACA.

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PETA’s Use Of Canadian Club Trademark Gets Whacked

People for the Ethical Treatment of Animals (PETA) is in the news again for its cheeky ad campaigns, which sometimes use well known trademarks of other parties to garner exposure for its views on Canada’s seal hunt.  We previously blogged about the use by PETA of an ad featuring the 2010 Winter Olympic and Paralympic Games mascots. 

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HEALTH REFORM: Government Regulators Issue Proposed Regulations Interpreting the ACO Requirements

Earlier today, the Centers for Medicare & Medicaid Services released the long- awaited proposed regulations implementing the Medicare Shared Savings Program. A copy of these regulations can be found by clicking here: CMS Proposed Regulations. In addition, the Federal Trade Commission and Department of Justice also issued a joint statement, entitled “Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program.” This statement can be found by clicking here: DOJ/FTC Proposed Statement.

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The Newest Trend in California Wage-Hour Class Actions: Claims for Inadequate Seating

By:  Michael Kun

Employers who do business in California are already well aware of the wage-hour class actions that have besieged employers in virtually every industry.   Class claims for misclassification of employees as exempt employees or independent contractors first began to be filed more than a decade ago, and continue to be filed on a daily basis.  Claims for alleged work off-the-clock and missed meal and rest periods by non-exempt employees generally began later, but continue to be filed at an alarming rate. 

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New Study Reveals that Women Board Members Create Opportunities for Women Executives

New findings by the Kellogg School of Management at Northwestern University underscore the benefits of adding more women to corporate boards. Kellogg’s study, entitled “Chipping Away at the Glass Ceiling: Gender Spillovers in Corporate Leadership,” reveals that “a higher representation of women on a company’s board of directors directly increases the female share of and access to higher positions within the company.”

The news that putting more women on a company’s board leads to more women in top management positions at that company is very encouraging. As David Matsa, assistant professor of finance at Kellogg aptly points out, this is a situation of “‘women helping women’ at the highest level of company leadership.” However, on the flip side, the study found that increasing the number of female top-level managers at a company won’t result in more women occupying board seats.

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ILN-terviews: Mark Weintraub, Clark Wilson

Welcome to ILN-terviews, a series of profiles of ILN member firm attorneys, designed to give a unique insight into the lawyers who make up our Network. For our latest interview, we chose ILN member, Mark Weintraub of Clark Wilson in Vancouver, Canada.

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The Newest Trend in California Wage-Hour Class Actions: Claims for Inadequate Seating

By Michael Kun

Employers who do business in California are already well aware of the wage-hour class actions that have besieged employers in virtually every industry.   Class claims for misclassification of employees as exempt employees or independent contractors first began to be filed more than a decade ago, and continue to be filed on a daily basis.  Claims for alleged work off-the-clock and missed meal and rest periods by non-exempt employees generally began later, but continue to be filed at an alarming rate. 

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EpsteinBeckerGreen Wins Dismissal of Servers’ Wage and Tip Claims Against Restaurant

On January 14, 2011, EpsteinBeckerGreen helped one of its restaurant clients, the Brasserie Ruhlmann, obtain summary judgment “in its entirety” in a lawsuit brought by former waiters, bussers, and runners (“Plaintiffs”). Similar to many such wage and hour cases currently being litigated in the hospitality industry, Plaintiffs sought to invalidate the restaurant’s tip pool with assertions that captains and the banquet coordinator performed managerial functions and, thus, were not “tip eligible.” If Plaintiffs had succeeded, they would have also invalidated the restaurant’s “tip credit” system of compensating service employees, potentially resulting in significant minimum wage and overtime liability. Plaintiffs made further claims for tips during their initial training period, alleged “spread of hours” violations, and alleged uniform maintenance violations.

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Supreme Court Rules Oral Complaints Protected by FLSA But Leaves Open Questions of Notice and Formality

by Charles Wilson

On March 22nd, the Supreme Court, in Kasten v. Saint-Gobain Performance Plastics Corp., a 6-2 opinion written by Justice Breyer, ruled the Fair Labor Standards Act (“FLSA”) protects oral complaints of perceived wage and hour violations. In making such ruling, the Court resolved a conflict among the lower courts but left open the question of what is sufficient fair notice and whether an employee is required to report the complaint to a government agency rather than internally to the employer. Regardless, the Court’s ruling will likely expose employers to more risk of retaliation claims when making adverse employment decisions after an employee raises concerns about how they are compensated.

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EpsteinBeckerGreen Wins Dismissal of Servers’ Wage and Tip Claims Against Restaurant

On January 14, 2011, EpsteinBeckerGreen helped one of its restaurant clients, the Brasserie Ruhlmann, obtain summary judgment “in its entirety” in a lawsuit brought by former waiters, bussers, and runners (“Plaintiffs”).  Similar to many such wage and hour cases currently being litigated in the hospitality industry, Plaintiffs sought to invalidate the restaurant’s tip pool with assertions that captains and the banquet coordinator performed managerial functions and, thus, were not “tip eligible.”  If Plaintiffs had succeeded, they would have also invalidated the restaurant’s “tip credit” system of compensating service employees, potentially resulting in significant minimum wage and overtime liability.  Plaintiffs made further claims for tips during their initial training period, alleged “spread of hours” violations, and alleged uniform maintenance violations. 

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