Category: Legal Insights

Posted January 11, 2017

Impending Legal Decision Creates More Uncertainty for Health Insurers

Could health insurers leave the commercial market before the end of their plan year? The question has become relevant in light of recent court proceedings (House v. Burwell) involving the Affordable Care Act. The federal government currently pays insurers to subsidize health coverage in what is known as cost-sharing reduction (CSR) payments.

Posted December 12, 2016

Considerations for Payors Regarding Tom Price’s HHS Secretary Appointment

On November 28, 2016, President-elect Donald Trump nominated current House Budget Chair Representative Tom Price for Secretary of Health and Human Services (HHS). Price introduced an Affordable Care Act (ACA) replacement plan in 2015 entitled the “Empowering Patients First Act” (EPFA). EPFA suggests extensive healthcare reform applicable to payors in both the public and private sectors. Upon his nomination for HHS Secretary, Price promised that the impending healthcare reform overhaul would bear significant resemblance to his 2015 proposal, which ran on a two-year implementation timeline. While Congress will present the ultimate reform initiative to Price to implement in his new role, Price’s past healthcare reform efforts, both via EPFA and other congressional activities, are likely to help shape the final decisions.

Posted December 1, 2016

Five Things Every Hospital Board Member Should Know About the Collection of Patient Debt

Hospital boards have a thousand moving pieces to watch. Boards are not supposed to understand the day-to-day operations of the hospital collection process. Rather, hospital boards are charged with ensuring that policies, processes and people are in place so that the hospital is in compliance with the rules, laws and agreements governing the collection of patient debt.

Posted November 23, 2016

CPSC Wins Decisively in Rare Decision Addressing Procedural Defenses to CPSA Enforcement Actions

On November 17, 2016, Judge William Conley of the United States District Court for the Western District of Wisconsin issued an opinion and order addressing rarely litigated procedural defenses to CPSA enforcement actions. The case, United States of America v. Spectrum Brands, Inc., No. 15-cv-371-wmc, involves allegations that Spectrum Brands, Inc. (“Spectrum”) violated the reporting requirements under section 15(b) of the CPSA by failing to immediately notify the CPSC of a potential defect in one of Spectrum’s coffee pot carafes that may pose a significant product hazard. The decision will be closely analyzed by product manufacturers, retailers, and legal practitioners alike, both because federal courts rarely issue opinions in CPSC enforcement actions and because Judge Conley roundly rejected Spectrum’s numerous procedural defenses.

Posted June 21, 2016

FAA Releases Finalized Operational Rules for Small Commercial Drones

the Federal Aviation Administration (FAA) finalized the much-anticipated rules for commercial use of small unmanned aircraft systems (UAS or drones). The rules were initially proposed in February 2015 and will now take effect in late August 2016. At that time, companies – ranging from real estate companies wanting to take aerial photography of properties to organizations wishing to inspect inventory or utilities – will no longer need to apply for an FAA Section 333 exemption for routine commercial drone use as long as their operations comply with the new rules.

Posted June 6, 2016

Building an “All-Terrain” Drug and Alcohol Testing Employment Process

The U.S. Court of Appeals for the Eighth Circuit recently ruled that the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) has a multi-state reach and its requirements apply to employees of Minnesota-based employers who work in other states.

Posted June 1, 2016 with Tags Consumer Class Actions, Consumer Fraud, Products Liability

A Wolf In Sheep’s Clothing – Undressing the Consumer Fraud Class Action to Reveal the Hidden Product Liability Claim

Republished with permission. Originally published in FDCC Insights, June 2016. Introduction In 2015, our firm was hired to defend a manufacturer in a consumer fraud class action lawsuit filed in federal court in Minneapolis. As we analyzed the complaint, one …

Posted January 21, 2016

Supreme Court: ERISA Plan’s Equitable Lien Cannot Be Enforced Against Plan Participant’s Separate Assets

In an 8 to 1 decision, the Supreme Court held that a subrogation lien set forth in the benefit plan cannot be enforced in equity under section 502(a)(3) of ERISA against a plan participant's separate assets—those funds that exist outside a specified fund.

Posted October 28, 2015

Major Changes in Store for Classifying Worker Overtime Status

Nilan Johnson Lewis labor and employment attorney Joe Schmitt analyzes President Obama’s push for expanding overtime rules, and explains the impact on businesses and employees. Overview The United States Department of Labor is set to announce significant changes to the “exempt” classification …

Posted September 28, 2015

Illusory Promises May Derail Your Non-Competes

Katie Connolly authored an article on illusory promises in non-competes for the Corporate Compliance Insights website.

Posted May 19, 2015

The 30% Rule: Proposed EEOC Guidance on Corporate Wellness Programs Would Set Cap on Incentives

“Employers have a brief window, until June 19, 2015, to comment on the EEOC’s proposed rules,” says Mark Girouard.

Posted May 19, 2015

Federal Contractors: Special Employment Rules for Me, But Not for Thee?

Contractors that provide services directly to the federal government may be wondering if they’re getting picked on or put on a pedestal. According to one labor attorney, the answer is both: government rules governing federal contractor employment practices have become radically different compared to those serving private enterprises.

Posted May 19, 2015

When Crafting a Non-Compete Agreement, Beware of Illusory Promises

Recent court cases might be signaling a new trend for how non-compete agreements are interpreted - one that looks at the sufficiency of the contract’s consideration, rather than its existence. Historically, the analysis of whether consideration exists is very simple: two parties exchange promises—what you see is what you get—and there is no doubt as to the existence of consideration.

Posted April 29, 2015

Supreme Court Affirms Judicial Review of EEOC, Requires Agency to Discuss Specific Claims and Allow Employer to Rectify Practices

This “manageable standard of review”—announced by a unanimous Court—requires the EEOC to demonstrate that, prior to commencing a lawsuit, it notified the employer of the discriminatory practice and identified “which employees (or what class of employees) had suffered as a result.” The EEOC must also give the employer an opportunity to discuss and remedy the practice prior to suing.

Posted April 7, 2015

To Aid Whistleblowers, SEC Takes Aim at Employers’ Confidentiality Agreements

On April 1, the Securities and Exchange Commission announced its first enforcement action against a company for using restrictive language in confidentiality agreements, on the grounds that it had the potential to impede the whistleblowing process.

Posted March 5, 2015

Incoming! Despite Lack of “Ice Missile” Laws in Minnesota, Trucking Companies Still Potentially Liable for Negligence

If you are a resident of a northern state, the sight of ice and snow flying from the roof of moving vehicles is not unfamiliar. These incidents have the potential to cause severe injury or death to drivers. In a recent event on Highway 36 in Roseville, Minnesota, a chunk of ice flew off a tractor-trailer and hit the windshield of a nearby passenger vehicle.

Posted January 7, 2015

Can the EEOC Be Trusted to Police Its Own Compliance?

Labor and employment Shareholder Mark Girouard discusses Mach Mining, LLC v. EEOC, which poses the question of whether employers may challenge in court the EEOC’s filing of a lawsuit on the basis that the Commission failed to attempt resolution in good faith.

Posted May 7, 2014

Don’t “Friend” the Juror – New Ethical Guidelines Issued for Attorneys on Social Media

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 466, addressing the use of social media and other Internet resources to research both potential and seated jurors. Not surprisingly, the practice has become more …

Posted July 9, 2013 with Tags law, legal, Business Law

The Rise of Associations, the Risk of Antitrust

There is an association for every type of health care provider and for every type of business that serves health care providers. Associations struggle with the allure of wanting to help their members share information and practices. If information sharing …

Posted July 9, 2013 with Tags law, legal, Business Law

My Health Plan Is Now My Provider?

In effort to more effectively manage their members, health plans are getting into the business of providing care. Some larger HMOs now employ nurse practitioners, for example, to work in the field and service long-term care centers. Are plans being …