For Husch Blackwell’s Northwestern University grad school alums, Laura Labeots (Ph.D. 1992) and Ed Gamson (Ph.D. 1970), it was a huge thrill to learn that one of their own, a fellow chemist from Northwestern, had won the 2016 Nobel Prize in Chemistry last week. Sir J. Fraser Stoddart, who specializes in Nanotechnology, will be awarded the Nobel this December in Stockholm, Sweden, for his groundbreaking work on “molecular machines.” He and his group have devised molecules that remarkably can do mechanical work, such as lifting and moving other small molecules.

On September 12, 2016, the EPA issued its Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework (Strategy Document), which addresses growing concerns about the application of federal hazardous waste regulations to pharmacies and retail operations. The Strategy Document takes into account practices common to pharmacies (e.g., reverse distribution) that present unique compliance issues…

As most are aware, on May 18, 2016, the U.S. Department of Labor (DOL) released its much anticipated final rule, drastically increasing the salary requirements to qualify as an exempt executive, administrative or professional employee. The DOL estimates that the final rule will extend overtime protections to 4.2 million workers in the first year of implementation and boost wages by $12 billion over the next 10 years. The rule is set to become effective Dec. 1, 2016.

An entrepreneurial company may face an early decision as to how it can afford to develop new technology, particularly new technology that does not fit within the technical specialties of that entity. Whether a new company needs to develop a new website, new software, or a compatible piece of technology, that company might consider entering into a contractual alliance with another party to develop that technology.

Roughly $2.95 for each $1 overpaid (plus legal costs and the overpayment) based on an August 24, 2016, U.S. Attorney’s Office press release regarding settlement of State of New York, ex rel. Robert P. Kane v. Healthfirst, Inc. et al case in the U.S. District Court for the Southern District of New York. Defendants previously lost a motion to dismiss this case based, in part, on the fact that defendants actually identified and repaid the overpayments. Specifically, about $1 million in overpayments were presented to the defendants in the form of a spreadsheet in February 2011. Subsequently, defendants repaid the overpayments in more than 30 installments from April 2011 to March 2013. Notwithstanding, the government took the position that, under the False Claims Act, repayment should have been made within 60 days of the date of the claims were identified in the spreadsheet. Defendants argued, among other things, that there was ambiguity about the term “identify” as used in the False Claims Act and that the spreadsheet was merely the first component of an investigation into the overpayments that was ongoing through the repayment process. Almost a year after losing the motion to dismiss, defendants settled the case for $2.95 million.

The Telephone Consumer Protection Act (TCPA), which imposes a penalty of $500-$1,500 per violation for pre-recorded or auto-dialed calls to cell phones, contains two statutory exceptions to liability:

  • where the recipient of the call provided his or her prior express consent to be called, or
  • where the call was placed for an “emergency purpose.”

47 U.S.C. § 227 (b)(1). While much attention has been focused on “consent,” the FCC’s definition of “emergency purpose” has remained relatively untested in TCPA litigation.

That landscape may be beginning to change. The federal district court’s recent decision in the putative class action lawsuit Roberts v. Medco Health Solutions, et al., No. 4:15 CV 1368 CDP (E.D. Mo., July 26, 2016) recognized that consistent with the FCC’s promulgated definition, the emergency purpose exception must be interpreted broadly to cover any calls that may affect the health and safety of a consumer.

Healthcare is a highly competitive market. Healthcare companies are hiring marketing teams to lure customers to their facility. This will invariably require making statements regarding the quality of your services and how your services are better than your competitors. Problems will arise if these ads cause patients or their families to expect more than what is or even can be offered. There are many scenarios that could result in claims of false advertising under §43(a) of the Lanham Act. In addition, the Federal Trade Commission (FTC) and the National Advertising Division (NAD) of the Council of Better Business Bureaus have guidelines for what companies may include within their marketing programs. Today, however, we will be looking at “puffery.”

In one of our first posts, we discussed the five categories of trademarks (Generic – Descriptive – Suggestive – Arbitrary – Fanciful) and how a mark became more protectable as it moved up the line. Laudatory trademarks, trademarks that attribute a quality or excellence to the goods or services, are often included in this list as “descriptive marks” requiring a showing of secondary meaning to be protectable. However, it has been recognized that some laudatory marks do not describe any feature of the product it is used with, but rather suggest that the product is of high quality or “better” quality than other similar products. In these cases, the laudatory composite mark may be considered to be suggestive.

Recently, Husch Blackwell partners Stephen Cockerham and Kevin Koronka presented a webinar to Texas employers concerning the impact legislation concerning gun rights may have on employers. The Fifth Circuit Court of Appeals, the federal appellate court with jurisdiction over Texas federal district courts, recently released a decision concerning employee gun rights of which employers, particularly those with Mississippi employees, should take note.

The U.S. Dept. of Health & Human Services Centers for Medicare and Medicaid Services (CMS) published a memo (Ref:  S&C: 16-33-NH) Aug. 5, 2016, to state nursing home survey agency directors related to protecting resident privacy and prohibiting mental abuse related to photographs and audio/video recordings by nursing home staff. The memo is a response to recent media reports regarding inappropriate posting to social media of pictures of nursing home residents – namely a disconcerting report by ProPublica detailing 47 incidents in which workers shared photos or videos with friends or the public – these incidents involved both mistreatment of residents and inadvertent disclosure or patient health information. Within 30 days of the memo, surveyors are to implement changes to address these issues.