North America

Robert A. McKenzie discusses IRS’ offshore voluntary disclosure initiative on First Business

Arnstein & Lehr Associate Robert A. McKenzie

Robert A. McKenzie

Chicago Associate Robert A. McKenzie was a guest on the Wednesday, September 7, edition of First Business to discuss the IRS’ current offshore voluntary disclosure initiative which was extended to September 9. To watch the segment, please click here. The segment appears at 7:36 into the video. First Business is a Chicago-based nationally syndicated business news program covering the financial and economic markets.

The First Business Morning News airs before the stock market opens in almost 50 states, most US television markets and internationally. In Chicago it airs on WCIU, Channel 26. In Florida it airs on Tampa’s WFLA NBC 8 and WFLX Fox 29 in West Palm Beach.

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Updated – HHS Publishes Health Insurance Premium Rate Review Final Rule, Amends Rule to Include Policies Sold Through Associations, and Lists States with Effective Rate Review Programs

EBG Introduces Interactive National Rate Review Scorecard

by Jesse M. Caplan and Lynn Shapiro Snyder

Shortly after the September 1st effective date for the Centers for Medicare & Medicaid Services (CMS) Rate Review Regulations, the U.S. Department of Health and Human Services published an Amendment to the Final Rule that revises the definitions of “Individual Market” and “Small Group Market” to include insurance policies sold to individuals and small groups through associations, whether or not the applicable state includes association coverage in its own definitions of the individual and small group markets. CMS also recently added two more states to the list of states with “effective rate review programs” covering both the individual and small group insurance markets.

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NLRB Continues its Mission to Revamp Labor Law: Modifies standard for determining appropriate bargaining units in non-acute health care facilities

In our January 10, 2011 Alert, Inch by Inch, Row by Row–NLRB Looks to Facilitate Organizing in Non-Acute Health Care Facilities, we advised you that the National Labor Relations Board was re-evaluating how it determines an appropriate bargaining unit in non-acute health care facilities.   In Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (Member Hayes dissenting…again), the Board found that Certified Nursing Assistants (CNAs) may comprise an appropriate bargaining unit without including other nonprofessional employees.  In doing so, the Board overruled Park Manor Care Center, Inc., 305 NLRB 872, 875 (1991) as “obsolete.”

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Update on the Confusion in Illinois Non-Compete Law

Illinois’ appellate courts are divided into five districts. Illinois’ lower (or trial) courts typically follow the decisions of the appellate district in which they are located. Unfortunately for employees and employers alike, those districts currently disagree about the appropriate standard for enforcing non-compete agreements. As a result, the enforceability of non-compete agreements in Illinois currently depends in part on where a lawsuit is filed.

The most recent appellate case that added to this confusion was the Illinois Court of Appeals for the Second District’s December 2010 opinion in Reliable Fire Equipment Company v. Arredondo, which we blogged about here. However, earlier this year, the Illinois Supreme Court granted leave to appeal in that case so that it could resolve the disagreement in the various appellate districts. Oral argument in that case has now been set for September 22, 2011. As a result, we may be one step closer to resolving the current confusion in Illinois non-compete law. Stay tuned.

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Advertising Alert: IS THIS THE END OF PREMIUM TEXT MESSAGING GAMES?

More than four years after lawsuits were filed against Fox Broadcasting, NBC, and other parties claiming that sweepstakes promoted on the TV shows “Deal Or No Deal” and “American Idol” were illegal under California and Massachusetts law, the parties have reached a tentative settlement.

The settlement, scheduled for a preliminary hearing in federal district court in California on September 19, provides that the defendants will:

1)  refund all premium text message charges paid by class members – potentially millions of people – who submit valid claims,

For the full alert, please click here.

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HEALTH REFORM: CMS Innovation Center Announces Four Models in Bundled Payments for Care Improvement Initiative

On August 23, 2011, the Centers for Medicare & Medicaid Services (“CMS”) Innovation Center announced a new initiative to encourage health care providers to better coordinate patient care.[1] The Bundled Payments for Care Improvement Initiative (“Bundled Payments Initiative”) seeks to align the financial incentives among hospitals, physicians, and non-physician practitioners through the use of a single negotiated payment for all services provided during an episode of care. The use of a bundled payment is expected to encourage hospitals, doctors, and other specialists to coordinate in treating a patient’s specific condition during a single hospital stay and recovery.

This is one of several new initiatives from the CMS Innovation Center intended to change the existing Medicare payment structure from one that pays for the quantity of care to one that pays for the quality of care. Participation in the Bundled Payments Initiative may serve as a first step for forming partnerships to improve care coordination and encourage participants to move into initiatives aimed at improving population health.

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Immigration Alert: September 2011

DOL Temporarily Suspends Work on Prevailing Wage Determinations Required for PERM Labor Certification Applications

H-1B Nonimmigrant Classification Is Still Open for Fiscal Year 2012

Important Developments in H-1B Areas of “Benching,” Retaliation, “Bona Fide” Terminations, and Prevailing Wages

NLRB Rejects Back Pay Claims of Undocumented Workers

U.S. Supreme Court’s Whiting Decision Spurs State Immigration Legislation and Related Litigation

DOJ Takes New Immigration-Related, Anti-Discrimination Enforcement Actions

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HEALTH REFORM: Updated – HHS Publishes Health Insurance Premium Rate Review Final Rule, Amends Rule to Include Policies Sold Through Associations, and Lists States with Effective Rate Review Programs

EBG Introduces Interactive National Rate Review Scorecard

This Client Alert updates and replaces the Implementing Health and Insurance Reform alert issued on August 19, 2011, titled “HHS Publishes Health Insurance Premium Rate Review Final Rule Effective September 1st and List of States with Effective Rate Review Programs.”

On May 23, 2011, the Center for Consumer Information & Insurance Oversight (CCIIO), in the Centers for Medicare & Medicaid Services (CMS) of the United States Department of Health and Human Services (HHS) published its Final Rule implementing Section 2794 of the Public Health Service Act (PHSA). This Section requires HHS to establish a process for the review of “unreasonable” health insurance premium rate increases in the individual and small group markets. The Final Rule[1] remains largely unchanged from the Proposed Rule, with important exceptions.[2] The Final Rule and the key changes are summarized in this Client Alert.

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Practical Reminder: If You Want to Be Able to Toll Your Restrictive Covenants, It’s Best to Say So

Restrictive covenant agreements often contain “tolling” provisions which extend the duration of the covenants by the time of any violation. Sometimes, employers do not include tolling provisions in their restrictive covenant agreements, but nevertheless subsequently request that a court use its discretion to extend the duration of those covenants by the time of a violation anyways. A recent opinion from the United States Court of Appeals for the First Circuit highlights the danger in not including a tolling provision in a restrictive covenant agreement.

In EMC Corporation v. Arturi, __ F.3d __ (1st Cir. Aug. 26, 2011), EMC requested a preliminary injunction prohibiting its former employee from using its confidential information, from competing with EMC, and from soliciting EMC customers. The trial court issued a preliminary injunction prohibiting the disclosure of confidential information. However, the trial court refused to issue an injunction prohibiting the former employee from competing or soliciting EMC’s customers because the one-year time periods in those restrictive covenants had already elapsed and there was no tolling provision to extend them. On appeal, the First Circuit affirmed the trial court’s refusal to extend the non-compete and non-solicit provisions absent a tolling provision. The court explained that under the governing Massachusetts law, “when the period of restraint has expired, even when the delay was substantially caused by the time consumed in legal appeals, specific relief is inappropriate and the injured party is left to his damages remedy.” The First Circuit also specifically pointed out that “EMC could have contracted…for tolling the term of the restriction during litigation, or for a period of restriction to commence upon preliminary finding of breach. But it did not.”

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Raymond J. Werner profiled in Smart Business article on law firm culture

Arnstein & Lehr Managing Partner Raymond J. Werner

Raymond J. Werner

Arnstein & Lehr Managing Partner Raymond J. Werner was interviewed for an article that recently appeared in Smart Business, a management journal providing insight, advice and strategy for C-level executives of fast-growth, middle-market and large companies. The article is entitled “Ray Werner avoids disagreements at firm by sticking to the facts.” In it he discusses his strategies for resolving conflict. To read the article, please click here.

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