login-customizer domain was triggered too early. This is usually an indicator for some code in the plugin or theme running too early. Translations should be loaded at the init action or later. Please see Debugging in WordPress for more information. (This message was added in version 6.7.0.) in /home1/natiopq9/public_html/wp-includes/functions.php on line 6131
Monica Riva Talley discusses how to effectively develop a business strategy that deters counterfeiters. Through five critical steps, learn how brands can protect both their reputations and bottom lines through a targeted marketing, strategic, and legal approach.
Video by:
Of:
The federal Family Medical Leave Act regulations were revised in 2013, primarily to expand the circumstances under which employees can take military leaves. For example, leave is now available to care for covered veterans and for service members or veterans who aggravated an existing illness or injury while on active duty (as opposed to suffering a new injury while on duty). Qualifying exigency leave is now also available to care for a covered service member’s parent.
The Department of Labor is increasing the number of complaint-driven on-site audits it conducts under the FMLA. Auditors will come in with a checklist of updates they expect to see in an employer’s FMLA policy to comply with the 2008 and 2013 regulatory changes, as well as the DOL’s informal guidance. Having updated policies will show an auditor or investigator that you are up to speed on the latest changes in the law and may lend credibility to your FMLA practices.
The Office of Federal Contract Compliance (“OFCCP”) issued regulations in 2013 substantially increasing the obligations of federal contractors relating to veterans and individuals with disabilities. Many of these new requirements, including language to be included in all job postings and subcontracts, go into effect March 24, 2014. Additional requirements go into effect at the start of an employer’s next plan year after March 24, 2014, but may require substantial planning in advance. For example, federal contractors will now be required to conduct statistical analysis of the number of veterans and disabled individuals in their workforce, much like what was already required for race and gender. This requires inviting individuals to self-identify as a veteran or disabled. The regulations require this invitation be made to all applicants and again to those offered jobs. It also requires that an employer’s existing work force be invited to self-identify as disabled every five years. Tracking this information can be complicated, as it must be kept separate from general personnel files and treated as confidential. This is not only required by the regulations but is also essential to avoid increased risk of discrimination claims on the basis of disability.
Companies that provide products or services under contracts with the federal government should review their obligations to ensure they are complying with these new OFCCP regulations.
Wisconsin’s 2013 Budget Bill made changes to the statutes governing unemployment insurance, which took effect January 5, 2014. Even before these changes, employees would be ineligible for unemployment insurance benefits if they were terminated for misconduct. The definition of misconduct previously came from case law. The new statute defines misconduct and includes examples, which include:
The statute also adds a second basis under which employees may be disqualified for benefits, if they are terminated for “substantial fault” in their performance. This still does not disqualify an employee from unemployment benefits for minor infractions or inadvertent errors, but on its face it would disqualify an employee who was terminated for major failures. This basis is largely undefined and untested, so we will have to monitor the decisions of administrative law judges and the courts to determine how it will be defined in practice. The updated statutes also narrow the circumstances in which an employee can quit his/her job and still qualify for unemployment benefits.
These changes may mean that employers are more likely to prevail if they challenge a former employee’s unemployment compensation claims. This may be of particular benefit to non-profit employers who participate in the unemployment insurance system as reimbursing employers, and therefore pay dollar-for-dollar on each unemployment claim.
Article by:
Of:
The purpose of having a blog is to foster an online dialogue with prospects, clients and referral sources so that when they need someone who does what you do, they will think of your first. Drawing people into your conversation requires you to often step outside your comfort zone, since most attorneys write the way they were trained to do in law school.
But when it comes to writing blog posts that people actually want to read, that just doesn’t cut it.
The most important thing to remember when writing for those who don’t practice law for a living is to be authentic. And the best way to do this is to write the way you talk. As you sit down to craft a new post, imagine you are talking to a friend who needs your guidance on a legal issue. Use the same words you use in your everyday life. Forget the grammar rules and write your draft, then go back over it to correct any glaring grammatical errors.
The infographic below, courtesy of Copyblogger.com, outlines the other essentials for writing blog posts. Print it off and keep a copy by your computer to refer to as you write. Following these simple guidelines will have you authoring a compelling, lead-generating blog in no time.
Article by:
Of:
Some, but far from all, employee benefit plans set a limit on the amount of time a participant has to file a lawsuit claiming benefits under the plan. Until recently, however, not all courts would recognize these plan imposed lawsuit filing deadlines. The Supreme Court case of Heimeshoff v. Hartford Life, decided in December 2013, changed that by ruling that employee benefit plan contractual provisions that limit the time to file a lawsuit to recover benefits are enforceable, provided the time limitations are not unreasonably short or contrary to a controlling statute.
The Heimeshoff decision involved a plan that provided a participant must file a lawsuit to recover benefits within three years from the date proof of loss was due. The Supreme Court decision found that the three year limitation period was not too short, noting the plan’s internal claims review process would be concluded in plenty of time for a participant to file a lawsuit to recover benefits. Based on the court’s reasoning, it appears likely that a shorter limitation on filing claims might also be upheld as long as there is sufficient time for the participant to file a lawsuit once the claims procedure period has ended.
While Heimeshoff involved a disability plan, the decision applies equally to all ERISA covered health and welfare plans, retirement plans, and top hat plans.
So, do your employee benefit plans include a limitation on the time a participant has to file a lawsuit to recover benefits? Don’t assume that they do. Many plans do not provide a time limit for filing a lawsuit, and now would be a great time to amend those plans to add the limitation.
Article by:
Of:
In a February 26, 2014 Memorandum, Chief Judge Christopher C. Conner of the United States District Court for the Middle District of Pennsylvania granted summary judgment for three defendants Mars, Inc., Nestlé USA, Inc., and The Hershey Company in a detailed opinion. The plaintiffs filed suit against chocolate manufacturers nearly six years ago, claiming that they conspired to fix the prices of various chocolate products. The decision is helpful for defendants as precedent that even lock-step price increases are not enough to survive summary judgment in a price-fixing case, at least in a market with few competitors. Judge Conner’s decision also demonstrates for defendants the value of developing and shepherding a comprehensive record to support the argument that their decisions were independent and economically and rationally defensible.
The plaintiffs relied on circumstantial evidence and an inference that parallel price increases were the result of a tacit agreement to engage in collusive behavior, “actuated” by a conspiracy in Canada that resulted in at least one guilty plea by a Canadian chocolate manufacturer. Judge Conner relied in part on a finding that the Canadian conspiracy made a similar conspiracy in the United States more plausible in denying the defendants’ motion to dismiss the complaint. In re Chocolate Confectionary Antitrust Litig., 602 F. Supp. 2d 538 (M.D. Pa. 2009).
Judge Conner found at the summary judgment stage, however, that there was no evidence that executives responsible for pricing in the United States were aware of any anticompetitive activity in Canada, and concluded that the rest of the plaintiffs’ evidence was insufficient to preclude summary judgment for the defendants. The plaintiffs had no direct evidence of conspiracy, so they were required to show both that the defendants consciously raised prices in parallel as well as sufficient evidence of “plus factors.” In this case, the court considered three plus factors: (1) the defendants’ motive and market factors; (2) whether the defendants’ behavior was against their self-interest; and (3) traditional conspiracy evidence. The plaintiffs’ evidence of parallel pricing was the strongest part of their case. The court concluded that Mars, Nestle, and Hershey raised prices in parallel because¾three times over the course of five years¾Mars initiated a price increase, and both Hershey and Nestle followed in quick succession (within one to two weeks) with nearly identical price increases (varying only once, and even then only by two-tenths of a penny).
The court recognized, however, that parallel price increases were not sufficient, especially in a market controlled by a few competitors (or an oligopoly) to support an inference of antitrust liability. The court concluded that the plaintiffs failed to demonstrate that the defendants acted against their own self-interest as required by the second plus factor. In reaching this conclusion, the court first pointed to evidence that the defendants increased prices in anticipation of cost increases, stating “it is rational, competitive, and self-interest motivated behavior to increase prices for the purpose of mitigating the effect of anticipated cost increases.” Judge Conner also cited to what he described as “extensive” internal communications before each increase in which each defendant unilaterally discussed whether they could raise prices as evidence of “independent and fiercely competitive business conduct,” not collusion. Finally, the court agreed with Nestle’s argument that widely supported economic principles supported its decision as the defendant with the smallest market share to follow the price increases of its competitors. In doing so, the court likely rejected an argument¾often made by plaintiffs¾that it was in Nestle’s best interest to cut prices and gain market share.
The court also concluded that the plaintiffs’ traditional evidence of conspiracy was insufficient to satisfy the third plus factor. The plaintiffs relied on three pieces of evidence to satisfy this factor: (1) the Canadian conspiracy; (2) the defendants’ possession of competitors’ pricing information; and (3) the defendants’ opportunity to conspire at trade association meetings. While the court accepted that the Canadian conspiracy could, in theory, facilitate a conspiracy in the United States, it found the facts did not support the application of the theory in this case because there was no evidence that U.S. decision-makers had knowledge of the Canadian conspiracy and there was no tie between the pricing activities in the two countries. From the court’s opinion, it appears the plaintiffs had little traditional conspiracy evidence beyond the supposed connection to Canada. The court rejected an argument that a “handful” of documents suggesting that the defendants were aware of competitors’ price increases before they were made public supported an inference of conspiracy. There was no evidence that the pricing information came from competitors, and the court concluded that this exchange of advance price information was as consistent with independent competitive behavior as it was with collusion. Finally, the court ruled that the presence of company officers at trade meetings¾without any evidence that they discussed prices there¾was insufficient to permit an inference that the price increases were the result of collusive behavior. Reviewing the record as a whole, the court concluded that the plaintiffs had produced no evidence tending to exclude the possibility that the defendants acted independently.
Judge Conner’s opinion is a relatively straightforward application of the standard for ruling on summary judgment in antitrust cases set forth in the Supreme Court’s Matsushita decision and for parallel pricing cases as set forth in the Third Circuit’s Baby Food and Flat Glass opinions. If appealed, Chocolate Confectionary is unlikely to result in a decision changing these standards significantly.
On the bright side for the plaintiffs, they reached a settlement with at least one defendant, Cadbury, before the summary judgment motion was ruled upon, so they will not be left empty handed.
Article by:
of:
The False Claims Act (31 U.S.C. §§ 3729 – 3733) (the FCA) penalizes individuals and companies (often government contractors) who defraud the government by either submitting a false request for payment or avoiding payment of an obligation to the government. In May 2009, the Department of Justice (DOJ) and Department of Health and Human Services jointly announced the formation of the Health Care Fraud Prevention and Enforcement Action Team, or the “HEAT” initiative, to specifically target fraud in the health care industry, and using the FCA as a primary tool.
According to the DOJ’s own estimates, the HEAT initiative has been successful. Indeed, the DOJ claims that in only five years, it has recovered more than $13.4 billion based on its pursuit of FCA and other claims against alleged perpetrators in the health care industry.
It is no shock based on those numbers that the DOJ remains as determined as ever to bring the “HEAT” against the health care industry. For example, on Feb. 25, 2014, the DOJ announced a $15.5 million settlement under the FCAagainst a chain of diagnostic testing facilities in New Jersey and New York. The DOJ alleged that the facilities falsely billed federal and state health care programs for tests that were not performed or not medically necessary and by paying kickbacks to physicians. Three whistleblowers received over $2.5 million in connection with the settlement.
On Feb. 10, 2014, the DOJ announced the settlement of FCA allegations against an addiction clinic, clinical lab, and two doctors in Kentucky for $15.75 million, approximately $12 million of which represent funds to be refunded to the federal government. The settlement arose out of allegations that the targets defrauded Medicare and Kentucky Medicaid by seeking reimbursement for unnecessary tests or tests that were more expensive than those performed.
These and other settlements demonstrate the DOJ’s ongoing commitment to aggressively pursuing allegations of fraud in the healthcare industry.
Article by:
Of:
The United Auto Workers (UAW), which already represents most of the largest carmakers in the United States, was unsuccessful in its efforts to unionizeVolkswagen’s (VW) plant in Chattanooga, Tennessee. What makes this noteworthy is that leading up to the February 14th representation election, the German company was actually campaigning for the UAW not against it in an employer-union alliance seldom seen in this country.
While the “big three” American carmakers (General Motors, Ford, and Chrysler) are all unionized, foreign carmakers have avoided unionization by locating their plants in Southern states with strong Right to Work laws. Volkswagen, however, considers the creation of a so-called “works council” a crucial element of its business. Works councils are common under German law, and Volkswagen has established works councils at all its foreign plants, with the exception of Chattanooga and China.
Under these works councils, all workers in a factory regardless of position and whether they are unionized or not, help decide things like staffing schedules and working conditions, while the union bargains on wages and benefits. They also have the right to review certain types of information about how the company is doing financially, which means that they tend to be more sympathetic towards management’s desire to make cutbacks during tough financial times. Each Volkswagen plant throughout the world sends its delegates to a global works council that influences which products the company makes and where. This arrangement would have represented a new experience for the UAW, unlike its relationship with Chrysler, General Motors and Ford, which would have involved sharing control with the works council.
A tough question for Volkswagen and the UAW is whether a works council would be legal in the United States without a union. There is no provision in the NLRA for the kind of German-style works council Volkswagen seeks. Volkswagen’s best option for creating a works council would have been for its workers to accept UAW representation. Volkswagen must now rethink its options in seeking a way to create a works council. Options include talking with a different union that might be more popular with its workers or encouraging workers to organize their own independent union. Another option would be moving ahead without a union and risking an NLRB challenge.
After the UAW was defeated by a 712-626 vote in its bid to represent workers at the Volkswagen plant, the UAW promptly requested a new election claiming Tennessee politicians and outside organizations coordinated and vigorously promoted a coercive campaign to sow fear and deprive Volkswagen workers of their right to join a union. Senior state officials including United States Senator Bob Corker, TennesseeGovernor William Haslam, State House Speaker Beth Harwell, and State House Majority Leader Gerald McCormick, made statements in an effort to convince the workers to reject the UAW. The UAW’s alleges this was part of an unlawful campaign which included publicly announced and widely disseminated threats by elected officials that state-financed incentives would be withheld if workers exercised their right to join the UAW’s ranks. However, on February 25, 2014, a group of Volkswagen workers sought to intervene in the UAW‘s bid, and argued that the election results should stand.
Article by:
Of:
A Florida appellate court has ruled that a teenaged daughter’s post on Facebookmentioning her father’s confidential settlement of an age discrimination claim breached a confidentiality provision in the settlement agreement, barring the father from collecting an $80,000 settlement. Gulliver Schools, Inc. v. Snay, No. 3D13-1952 (Fla 3d DCA Feb. 26, 2014).
The plaintiff, Patrick Snay, was a headmaster of Gulliver, a private school in the Miami area. After his contract was not renewed, he sued for age discrimination. The parties reached a settlement pursuant to a written agreement, which included a detailed confidentiality provision. The provision stated in part:
13. Confidentiality . . . [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement. . . A breach . . . will result in disgorgement of the Plaintiff’s portion of the Settlement Payments.
A couple of days after the agreement was signed, Snay’s daughter, who had recently been a student at Gulliver, posted the following on her Facebook page:
Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.
Snay’s daughter had about 1,200 Facebook friends, many of whom were current or former Gulliver students. Gulliver notified Snay of the breach and refused to tender the $80,000 to Snay under the terms of the settlement. (Snay’s attorneys received their portion). Snay moved to enforce the agreement. Limited discovery revealed that Snay and his wife notified their daughter “that the case was settled and they were happy with the result.” Snay denied ever discussing a trip to Europe. The district court held that Snay’s actions did not violate the terms of the agreement, but the appellate court reversed, noting that Snay was prohibited from “directly or indirectly” disclosing even the “existence” of the settlement.
The decision offers lessons for counsel, litigants, and parents. Counsel and litigants need to remember that these types of confidentiality provisions with disgorgement penalties are taken seriously by the courts and can be enforced. Parents need to remind their children to be mindful of what they post on social media, because it might have adult consequences.
Article by:
Of:
After Target Corporation’s (NYSE: TGT) net earnings dropped 46% in its fourth quarter compared to the same period last year, Target finally answered the 441 million dollar question – To 8-K, or not to 8-K? Target filed its much anticipated Current Report on Form 8-K on February 26th, just over two months after it discovered its massive data breach.
In its 9-page filing, Target included two introductory sentences relating to disclosure of the breach under Item 8.01 – Other Events:
During the fourth quarter of 2013, we experienced a data breach in which certain payment card and other guest information was stolen through unauthorized access to our network. Throughout the Risk Factors in this report, this incident is referred to as the ‘2013 data breach’.
Target then buried three new risk factors that directly discussed the breach apparently at random within a total of 18 new risk factors that covered a variety of topics ranging from natural disasters to income taxes. Appearing in multiple risk factors throughout the 8-K were the following:
An interesting and atypically relevant part of Target’s 8-K is the “Date of earliest event reported” on its 8-K cover page. Although Target disclosed its fourth quarter 2013 breach under Item 8.01, Target still listed February 26, 2014 as the date of the earliest event reported, which is the date of the 8-K filing and corresponding press release disclosing Target’s financial results. One can only imagine that this usually benign date on Target’s 8-K was deliberated over for hours by expensive securities lawyers, and that using the February earnings release date instead of the December breach date was nothing short of deliberate. Likely one more subtle way to shift the market’s focus away from the two-month old data breach and instead bury the disclosure within a standard results of operations 8-K filing and 15 non-breach related risk factors.
To Target’s credit, its fourth quarter and fiscal year ended on February 1, 2014, and Target’s fourth quarter included the entirety of the period during and after the breach through February 1. Keeping that in mind, Target may not have had a full picture of how the breach affected its earnings in the fourth quarter until it prepared its fourth quarter and year-end financial statements this month. Maybe the relevant “Date of earliest event” was the date on which Target was able to fully appreciate the effects of the breach, which occurred on the day that it finalized and released its earnings on February 26. But maybe not.
Whatever the case may be, Target’s long awaited 8-K filing is likely only a short teaser of the disclosure that should be included in Target’s upcoming Form 10-K filing.
Article by:
Of:
The National Law Review is pleased to bring you information about the upcoming Trademark Infringement & Litigation Summit hosted by IQPC.
When
Monday April 28 & Tuesday April 29, 2014
Where
San Francisco, California, USA
Trademark law may not be changing, but its application certainly has and will continue to do so. Brands are increasingly global, which opens up new possibilities for companies… but also new trademark issues and potential pitfalls. The online experience adds to this global focus and changes the interaction between brands and consumers dramatically.
IQPC’s Trademark Infringement & Litigation Summit will address the topics that you grapple with on a daily basis, including:
Perhaps the biggest benefit of attending, however, is the practical, frank conversation about the legal and business choices involved in protecting and maintaining your brand. Attend the Trademark Infringement & Litigation Summit to work through these issues with your colleagues.
Do not miss your opportunity to network and engage with top in-house and outside counsel working in the area. Register today!
NOTE: IQPC plans on making CLE credits available for the state of California (number of credits pending). In addition, IQPC processes requests for CLE Credits in other states, subject to the rules, regulations and restrictions dictated by each individual state. For any questions pertaining to CLE Credits please contact: amanda.nasner@iqpc.com.
