North America

Modification in Medicaid EHR Incentive Program Calculation – Net Average Allowable Cost

Congress issues modification to the Medicaid EHR Incentive Payment calculation.

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

On February 2, 2011, the Centers for Medicare and Medicaid Services (“CMS”) published new rules (“Final Rule”)[1] authorized by the Affordable Care Act (“ACA”)[2] 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.

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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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The issue of « estoppel » resulting from the contents of a reservation of rights letter addressed by the insurer to the insured has been the object of a fair number of judgements in recent years. Another judgement has been rendered recently that will be helpful in determining the extent of the insurer’s duty in that respect. That judgement was rendered on October 22nd, 2010 by the Honorable Manon Savard, SJC, in Nicholas Smith, ès qualité c. Solution Air Pro Inc. et al

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