One of the less discussed issues with the ACA however, is the potential for a massive provider shortage. At its basic level, one of the primary purposes of the ACA is to increase the number of insured Americans. Indeed, according to various estimates, the implementation of the ACA is anticipated to provide insurance to 25-30 million additional individuals who would otherwise not be insured: “[T]he Affordable Care Act will also ensure that every American can access high-quality, affordable coverage, providing health insurance to nearly 30 million Americans who would otherwise be uninsured.” (Quoted from 2014 Funding Highlights bulletin published on www.whitehouse.gov). Coupled with provisions providing for free or reduced cost annual exams; greater Medicare coverage; increased coverage for younger adults; and increased coverage for preventative care and testing such as mammograms and colonoscopies; that means more insured people utilizing more health care services. Consequently, the question arises of whether we have enough physicians and providers to administer the increased health care demands?
The Patient Protection and Affordable Care Act, often referred to as the “Affordable Care Act” (ACA), or perhaps more commonly “Obama Care,” has had no shortage of media coverage and controversy since it was signed into law nearly four years ago (Yes, it has been 4 years! President Obama signed the Act into law on March 23, 2010). Several aspects of the ACA have been, for better or worse, more “visible” than others; such as the heavy focus on the “individual mandate,” i.e. the requirement that uninsured citizens obtain health insurance or pay a penalty; the impact on employers and small businesses; and the more recent website debacle where many people seeking to sign up for health insurance on the newly created exchanges were unable to do so due to technical issues with the ACA’s www.healthcare.gov website.
The first case involves five gallon bottled water that is municipal tap water that the seller put through a purification process. In the Chicago Faucet Shoppe, Inc. v. Nestle Waters North America, Inc., No. 12 C 08119 (N.D. Ill. 2/11/14), the plaintiff alleged that the defendant failed to disclose that the water is municipal tap water and not natural spring water. After buying the bottles for years, that plaintiff realized it was simply purchasing municipal tap water that underwent a purification process. That defendant apparently referred to “spring water” on its website, invoices, and panels on its delivery trucks. Importantly, it did not include that statement on its labels. That was crucial for purposes of the defendant’s preemption argument. Federal regulations exempt “purified water” from disclosing if the water comes from a community water system. 21 C.F.R. § 165.110(a)(3)(ii) & (a)(2)(iv). In fact, the FDA considered but rejected requiring disclosure for purified water, concluding that consumers purchasing it were more concerned with purity and not the source.
This plaintiff knew it couldn’t force the defendant to add more to its label than federal law required. Instead, it argued that it only wanted the defendant to disclose the source in marketing materials and on invoices. But marketing really is no different than labeling. The federal Food Drug & Cosmetic Act prohibits states from imposing any food labeling that is not identical to a federal standard. Because the federal regulations do not require “purified water” to disclose if it came from a municipal water source, federal law preempted this plaintiff’s claims even though it framed the targeted materials as marketing materials rather than labeling.
You may wonder why the plaintiff did not allege affirmative fraud based on statements on the website and invoices referring to Ice Mountain “spring water.” Indeed, the court wondered the same thing, so it analyzed (and rejected) an affirmative misrepresentation claim even though the plaintiff did not plead it. Of course, the most likely reason that the plaintiff did not pursue an affirmative misrepresentation claim is the near impossibility of getting such a class certified. The court did not touch on that issue, but anyone familiar with consumer fraud class actions certainly recognizes it. If the plaintiff built its case on specific statements on the website or on invoices, it would have to explain how the court could certify a class without getting mired in individual issues of who saw the website, who relied on it, and what other sources of information they possessed. That is why these types of food labeling claims tend to rely entirely on the product labeling as opposed to occasional statements on websites or other places.
The next case is Kane v. Chobani, Inc., No. 12-CV-02425-LHK (N.D. Cal. 2/20/14). This case is familiar to people following food labeling class actions and began in May 2012. Since then, the court has granted various motions to dismiss but allowed that plaintiff more opportunities to plead cognizable claims. At this point, the plaintiff was on her fourth attempt and, thankfully, it is the last one. This case is a little more typical because it is in the Northern District of California and relies on California consumer protection laws. This plaintiff has been pursuing claims falling into two categories. The first relates to Evaporated Cane Juice (“ECJ”); she alleges that ECJ is nothing more than sugar or dried can syrup, so referring to ECJ on the label is misleading and violates federal regulations requiring manufacturers to refer to ingredients by their common and usual names. The second class of claims are “all natural” claims. She alleges that using fruit and vegetable juice and turmeric for color was false and misleading because those are not “all natural.”
One of the most useful portions of this order is its discussion of California UCL claims under that statute’s “unlawful” prong. Some plaintiffs have successfully argued that they need not rely on a labeling statement that is “unlawful”; rather, they only need to plead that it is plausible that a defendant broke a law (typically, a federal food labeling requirement). In fact, a handful of other courts in the Northern District of California have accepted that rationale. But Judge Lucy Koh was having none of it. She reasoned that any UCL named plaintiff must allege that they relied on the offending statement or conduct, even under the “unlawful” prong. This will be a developing area under California consumer fraud law. At some point, the California Supreme Court or the Ninth Circuit will resolve this growing split among lower courts interpreting allegations of “unlawful” conduct and UCL claims. For now, unfortunately, the outcome in such cases may turn on which judge handles a particular case.
The court then analyzed whether this plaintiff actually relied on the alleged misstatements. This really is an interesting portion of the opinion, particularly considering how Judge Koh evaluated the plaintiff’s changing allegations over the course of the case. As to ECJ, the plaintiff initially contended she did not realize that ECJ was just another sweetener. But in other portions of the amended pleading, the plaintiff repeatedly referred to sugar and dried cane syrup interchangeably. Judge Koh did not believe it was plausible that the plaintiff could realize that “dried cane syrup” was a form of sugar, but that “evaporated cane juice” was not. Similarly, the plaintiff earlier sought a preliminary injunction (perhaps an unwise move) and submitted a declaration indicating she would not have purchased the product if she knew it contained “dried cane syrup”; again, this showed she knew that dried cane syrup was the same as sugar. And despite the court’s earlier rulings, this latest pleading failed to explain how the plaintiff could understand that dried cane syrup was a form of sugar but was oblivious to that fact regarding ECJ, particularly considering that she purported to read and rely on the label.
Perhaps showing some desperation, the plaintiff and her counsel suggested that the “cane” in ECJ could have referred to some other type of cane, such as bamboo cane or sorghum cane. But during the hearing on the plaintiff’s preliminary injunction motion (again, probably not a good idea), the plaintiff’s counsel admitted that he does not know what people might think when they see ECJ on a label or whether they may believe it is something other than sugar cane. It was too much for Judge Koh, who found the “which cane is it” argument to be nonsensical.
Two recent district court decisions emphasize that food labeling class action defendants must carefully review complaints to identify what each named plaintiff contends it reviewed and whether the allegedly deceptive statements even affected the named plaintiff’s decision to purchase a product. These plaintiffs often string together unrelated allegations that have nothing to do with their purchases. If a defendant connects the dots and shows just how unrelated those allegations are, you have a much better chance of succeeding early in the case.
The 2008 amendments to the Foreign Intelligence Surveillance Act permit the Director of National Intelligence and the Attorney General to jointly authorize warrantless electronic surveillance, for one-year periods, targeted at a foreigner who is abroad. There is limited, if any, protection for foreigners engaged in communications with American attorneys. Communications that American lawyers take for granted—our phone calls and e-mails with client—may be subject to interception when they involve a foreign client.
A lawyer has an ever evolving duty to safeguard confidential client information. We don’t just lock our doors and keep our voices down—we encrypt our files, we scrub our metadata—and now, we tackle the issue of how we safeguard our communications with foreign clients.
You take comfort when you walk on to a plane that the flight crew always runs a printed checklist on every aspect of the flight and that most systems on the aircraft are duplicated. If you were awake, you might have heard the scrub or circulating nurse doing a sponge and instrument count before and after your surgery. These are routine and fundamental procedures in these professions.With the number of claims and their severity on the rise against legal professionals, you might just wonder why we do so little check-listing. I often remind younger lawyers that spell-checking is not proofreading. Double-checking legal documents by proofreading seems to be a dying art.
To help put these changes in context, consider this hypothetical. Assume I am defending a car manufacturer against a product case involving one of their fine automobiles cars. The case is venued in the District of Nevada. I want to inspect what remains of the car; envision the car inspection scene from Fight Club. The purportedly defective car, however, is at a junk yard, partially covered by a tattered blue tarp storage facility, where it is protected from the elements, located in the Eastern District of Michigan. The storage facility hates lawyers will not permit an inspection without a subpoena.
On December 1, 2013 an amended FRCP 45 went into effect. Why did it require amendment? “Current Rule 45 creates what the Advisory Committee came to call a ‘three-ring circus’ of challenges for the lawyer seeking to use a subpoena.” Report of the Civil Rules Advisory Committee, May 8, 2012 (page 80 of the link). Those with federal cases need to be aware of the changes this post attempts to address. As always, I encourage you to actually read the rule yourself.
A recent decision from the Northern District of California provides defendants with reason for cautious optimism regarding food labeling class actions. In Sethavanish v. ZonePerfect Nutrition Co., No. 12-20907-SC (N.D. Cal. Feb. 13, 2014), the court denied the plaintiff’s motion for class certification. That plaintiff alleged that the “all natural” representations on ZonePerfect bars were false and misleading because the bars contain at least one of ten specified non-natural ingredients. The plaintiff alleged that she regularly purchased those bars for her then-fiancé, who was an active-duty Marine who eventually deployed overseas. The plaintiff alleged that she and her fiancé relied on those representations and paid more for the ZonePerfect bars than she would have paid for other bars that were not all natural. She alternatively alleged that she would have purchased another brand of nutrition bar that truly was all natural.In ruling on class certification, the court first addressed whether the plaintiff had standing to bring her claims. While the court’s ruling in this regard is not helpful to defendants, it is also not surprising. The defendant argued that the plaintiff did not suffer any injury because its bars are less expensive than the Pure Protein bars that the plaintiff now purchases. The defendant also noted that the plaintiff admitted that she and her fiancé were willing to purchase non-natural nutrition bars so long as they were less expensive than “all natural” alternatives. Plaintiff also admitted that she has always been willing to eat foods with artificial and synthetic ingredients. While the court saw some tension among the plaintiff’s declaration, her pleadings, and her deposition testimony, that tension was not enough to eliminate standing. From the court’s perspective, “[i]t is enough that she has asserted that she would not have purchased the product but for Defendant’s alleged misrepresentation. She bargained for a nutrition bar that was all natural, and she allegedly received one that was not.” Again, the standing threshold is not a terribly difficult one to overcome, so this ruling is not too surprising. More helpful for defendants, however, is the court’s ruling on ascertainability. The court agreed with the defendant that the plaintiff could not define an objectively ascertainable class. The defendant overwhelmingly sells to retailers, and not directly to consumers. Records could only identify a very small fraction of consumers who purchased ZonePerfect bars in the last several years. Thus, no method existed to identify the members of the class. The district court noted that courts in the Ninth Circuit are split on the issue. It cited Xavier v. Philip Morris USA, Inc., 787 F. Supp. 2d 1075 (N.D. Cal. 2011), as an example of a case concluding a class could not be certified when there is no way to ascertain class membership. That court declined to rely on affidavits from potential class members, reasoning that such a procedure could invite fraudulent or inaccurate claims. In that respect, the Third Circuit’s opinion in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), also was instructive. There, the Third Circuit found that retailer records were not sufficiently thorough or accurate to identify class members. In addition, the Carrera court “held that fraudulent or inaccurate claims could dilute the recovery of absent class members, and, as a result, absent class members could argue that they were not bound by a judgment because the named plaintiff did not adequately represent them.” The court also pointed to Ries v. AriZona Beverages USA LLC, 287 F.R.D. 523 (N.D. Cal. 2012), as an example of a court rejecting a defendant’s ascertainability argument when dealing with “all natural” claims. Nonetheless, this court found the reasoning in Xavier and Carrera more persuasive. While those cases may restrict types of consumer class actions that may be certified, they do not bar such classes altogether. Because this plaintiff did not identify any method to determine class membership, let alone an administratively feasible method, the court denied class certification without prejudice. One effect of such decisions may be to encourage class counsel to try to certify narrower classes. For example, if a manufacturer sells directly to consumers through its website, a class action plaintiff may contend that a court could certify a class of those consumers. Of course, that assumes that the manufacturer maintains adequate records of such customers. Similarly, class representatives may argue that the court may certify a class of consumers who purchased the products at retail locations with robust consumer loyalty programs. Those types of programs often track individual customer’s purchases, though the extent of data maintained varies considerably. This is not to say that such narrowed classes would be appropriate. They would bring a host of other difficult issues. Nonetheless, it would not be surprising to see plaintiffs resort to that tactic in hopes convincing a court to certify a class. Such class certification would, of course, provide the type of leverage that class counsel seek to negotiate a broader settlement.
While our Georgia appellate courts have been busily working on the usual array of tax, condemnation and immunity issues, the rumble on the distant horizon is not coming from Atlanta. It is coming from Washington, D.C. It is coming from Everytown, U.S.A.
We should approach this with much trepidation. It is quite the treacherous path. It has been coming for a long, long time.
In Koenig v. Boulder Brands, Inc., No. 13-CV-1186 (ER) (S.D.N.Y. Jan. 31, 2014), the plaintiffs alleged that the defendants deceptively labeled milk products as “fat free” when they truly contained one gram of fat per serving. The defendants added an Omega-3 oil blend to fat-free milk, so the product contained less than 0.5 gram of milk fat per serving, but contained one gram of fat per serving due to adding the oil blend. As is common in these types of claims, the plaintiffs alleged that the “fat-free” labeling deceived them and that they paid a premium for the products because of that deceptive labeling.
While the product labeling touted the “fat-free” nature of the milk, the front label also disclosed that it contained “(1 g fat from Omega-3 oil blend),” albeit in smaller font. Of course, the nutrition facts panel also disclosed that the milk contained one gram of fat per serving, and the oil blend was the third ingredient listed. Unfortunately for the defendants, however, the nutrition facts panel did not contain an asterisk or disclaimer modifying that description. As we will see below, that was an important omission from the court’s perspective.
It is well-recognized now that states cannot impose labeling requirements different from those imposed by the Food, Drug, and Cosmetics Act (“FDCA”) and the Nutrition Labeling and Education Act (“NLEA”). Federal law, however, does not preempt state laws that only impose identical labeling requirements. A state consumer law may provide a claim even though the relevant federal laws do not provide any private remedies for consumers. Thus, these plaintiffs had to establish that their state law claims only imposed the same obligations as federal law, while the defendants argued the opposite.
Not surprisingly, a specific regulation regarding labeling of “fat free” products exists. Under that regulation, products labeled as “fat free” and that have an added ingredient consisting of fat must have an asterisk next to the ingredient and a statement along the lines of, “adds a trivial amount of fat,” “adds a negligible amount of fat,” or “adds a dietarily insignificant amount of fat.” 21 C.F.R. § 101.62(b)(ii). That is why the lack of an asterisk came back to haunt these defendants.
The defendants argued, however, that FDA compliance policy guides allowed them to treat this milk product essentially as two combined products—one that is “fat-free milk” and the other that is not fat-free Omega-3 oil. The defendants pointed to such policy guides regarding water with added minerals and peas and carrots. No such guidance existed for a “fat-free” product with added fat, though. The court rejected the argument that the policy guides for other products somehow pointed to preemption here. After all, no policy guide exists for this type of milk product, and a competing milk product appropriately uses the asterisk to note added oil. In fact, the court could not find any FDA policy guide involving combining an ingredient that is fat with a “fat-free” food. Considering that a regulation specifically addresses such situations of adding fat to “fat-free” foods, there was no reason to try to analogize to other policy guides for different types of food. Thus, the court concluded that the plaintiffs’ claims only sought to impose requirements that were identical to federal law.
The court then turned to the sufficiency of the state law claims. First, the plaintiffs alleged consumer fraud under New York’s General Business Law (“GBL”) § 349. That law relies on an objective test to assess whether practices are likely to mislead reasonable consumers acting reasonably under the circumstances. The court noted that a reasonable consumer may conclude that the product contains a gram of fat per serving, but also noted that a reasonable consumer might focus on the more prominent wording on the label touting the product as “fat-free milk and Omega-3s.” That was enough to defeat the motion to dismiss. The court also concluded that the plaintiffs adequately alleged injury because they contended that they paid price premiums based on the defendants’ misrepresentations.
The court dismissed the plaintiffs’ breach of express warranty claims, however, due to the lack of privity. It did so without prejudice, so the plaintiffs may attempt to replead that claim. It seems difficult, however, to conceive of retail plaintiffs buying products directly from the manufacturers, rather than from a grocery store. The court also dismissed the plaintiffs’ unjust enrichment claims as duplicative of other claims.
At this point in food and beverage labeling class actions, several courts have ruled on preemption issues and provide fairly consistent guidance on that doctrine. That guidance, of course, cuts both ways for manufacturers—plaintiffs have fairly clear road maps for how to plead claims to avoid preemption. More interesting questions, and perhaps more successful defenses, will arise in later proceedings such as summary judgment and class certification. For example, nearly every state’s consumer fraud laws purport to rely on an objective standard. That is, what would the reasonable consumer believe or would the labeling deceive the reasonable consumer? It is not clear how class action plaintiffs intended to satisfy this burden in many respects. Labels typically disclose the relevant information even when a plaintiff seizes on only one portion of the label (e.g., “fat free” or “all natural”). It should not be sufficient for class action plaintiffs to rely only on the named plaintiff’s subjective interpretations. There should be some requirement that they establish that a “reasonable” consumer would not have read other portions of the label, would not have understood them correctly, or would have disregarded them. This seems particularly difficult to do and, at a minimum, should require statistically significant and valid survey data regarding consumer perceptions of the labels. If a plaintiff does not offer that type of survey, a defendant should have grounds for summary judgment or to defeat class certification.
Another issue that these types of plaintiffs do not thoroughly address is injury due to alleged “premium” payments. In sum, plaintiffs argue that they paid more for a mislabeled product than they otherwise would have. That tends to be the entire measure of damages proffered by these types of class actions. But this should be a difficult proposition to prove. Grocery prices vary significantly depending on several factors. Was the product on sale? Did a customer belonging to a store’s “membership” program buy the product at a price lower than that for a non-offending product because of that membership? Did a customer buy the product because her preferred alternative product was sold out? Any number of differences may explain (1) whether a consumer actually paid a “premium” price and (2), if so, whether she paid that price because of the labeling or for unrelated reasons. The United States Supreme Court’s recent decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), gives class action defendants considerable ammunition to attack plaintiffs’ proposed methodologies for establishing injuries and damages. That ruling should play a significant role in defending any of these labeling class actions.
A recent federal court decision rejected a preemption argument under the Food, Drug, and Cosmetic Act and the Nutrition Labeling and Education Act regarding Smart Balance “fat-free” milks. Admittedly, those defendants advocated a novel preemption theory. It also did not help that a competing product used labeling that the plaintiffs acknowledged complied with all federal laws and would not provide a basis for state law claims.
One way Target could have reduced the risk of defending class action lawsuits after a security breach (at least from claims stemming from online purchases) was to include an arbitration clause in its online Terms and Conditions. Online retailers are starting to require that their customers agree to arbitrate disputes on an individual basis only, with customers being obligated to waive any rights they might have to pursue claims through class actions. Litigation in this area over the last several years has focused on the enforceability of these online arbitration agreements.
This past holiday season, Target Corporation was victimized by one of the largest retail data breaches in the United States. On December 19, 2013, Target confirmed reports that hackers stole payment data from approximately 40 million customers who shopped in its stores from November 27, 2013 through the middle of December. Since learning that data was also stolen from online shoppers, Target has since revised the number of potential customers affected up to between 70 million and 110 million. Retail analysts anticipate Target’s security breach will result in massive losses for the retailer due to federal and state regulatory penalties and lost revenues from cautious shoppers. More immediately, Target should be concerned with the onslaught of plaintiff class action lawsuits typically filed after a retail security breach.
I suspect that you will find that to still be true today. In any small town in America, the local attorneys are involved in their churches, civic groups and non-profits. It is part of practicing law, in my personal view. However, if you plan to serve on a board, you must make the determination early whether or not you are going to be a lawyer, or a board member. If you are the lawyer for an organization, you really should not be serving on the board. You also have to recognize that many non-profits are asking you to serve on their board so they can have free legal advice. That really does not work. There is a real conflict in duties there. You need to tell them you would be glad to serve, but you cannot give legal advice or render legal opinions. In the alternative, you can consider donating your time as a lawyer to the organization and not serve on the board.
Lawyers should seize the opportunity to give back to their communities by volunteering to serve on a board, whether non-profit or profit. However, you really need to be alert before you do so, even though this is a historical role of lawyers. Just after the formation of our country, a French political writer, Alexis de Tocqueville, spent considerable time in the new United States in the early 1800’s making observations about the new democracy (On Democracy in America). He was struck by the involvement of lawyers in every portion of the American society and felt their involvement and influence acted as a natural function against any excesses in democracy. He said: “The American is the Englishman left to himself.”
The New York Court of Appeals ruling that came down last week in Doe v. Guthrie Clinic, 2014 NY Slip Op 00138 (Court of Appeals 1/9/14), should prove helpful in evaluating the liability of medical corporations in cases involving the disclosure of confidential patient information where the breach of confidentiality is unrelated to the patient's treatment. In Guthrie Clinic, a nurse at the clinic treating the plaintiff for sexually transmitted disease recognized the plaintiff as the boyfriend of her sister-in-law, prompting the nurse to send her sister-in-law a series of text messages concerning the boyfriend's medical condition (i.e. his STD). The ruling came in response to the certification of a question to the New York Court of Appeals from the Second Circuit, which had earlier disposed of other of plaintiff's claims.The key holding in the Court of Appeals decision is that liability did not extend to the medical corporation because its "duty of safekeeping a patient's confidential medical information is limited to those risks that are reasonably foreseeable and to actions within the scope of employment". The Court analogized the facts here to those in N.X. v. Cabrini Med. Ctr, 739 N.Y.S.2d 348, a 2002 case where the defendant hospital was not found strictly liable for a surgical resident's sexual assault on a sedated patient.
1) Maintain an effective no-retaliation policy. All employers should maintain an effective no-retaliation policy to solidify its stance against retaliation. This should be affirmed in the company’s policies against harassment and discrimination, but can also be provided for in its own provision.
Retaliation claims were the most frequent claims filed with the Equal Employment Opportunity Commission (EEOC) for 2012. There has been a sharp rise in retaliation claims since the 2006 Supreme Court opinion in Burlington Northern & Santa Fe Railway Company v. White, which lowered the standard for what is considered retaliatory conduct. Employers accused of wrongdoing by an employee risk such a claim when the employee is later fired for a legitimate reason. However, employers should not fear retaliation claims so that employees are kept on to the detriment of their business. While fear of a retaliation claim is a legitimate concern, there are steps an employer can take to help reduce the likelihood of such a claim, and protect themselves if a claim is made.
Some attorneys may not fully appreciate the ethical limitations imposed on attorney advertising, as some aspects of social media may require closer examination regardless of where you practice. For example, do “professional specialties” mean an attorney is board certified by a particular state? Could it be perceived that way by a potential client? When does a third party recommendation equate to an unethical endorsement of an attorney’s skills? Even a cursory consideration of these questions shows why LinkedIn might be willing to discuss the concerns of state bar associations and to work with those state bars to ensure appropriate mechanisms are in place which would allow attorneys to have informational content in their profile useful to advertise their practice, but at the same time do so in compliance with the ethical rules of their state, while also allowing them to monitor and revise that content.. As attorneys continue to use and expand their use of social media, it is important to remember the standard advertising rules apply, even though the media may be ever changing.
LinkedIn has been recognized by numerous sources as a useful tool for marketing and networking within the legal community. The social networking site has nevertheless recently raised the concerns of a number of state bar associations, including Florida and New York. LinkedIn counsel recently met with Florida Bar Association officials to address the Florida bar’s concerns regarding the social networking site’s use of descriptors such as professional "specialties" and third party recommendations. While Florida may have among the most stringent advertising rules in the country, the Florida bar’s expressed concerns have echoed questions across the country pertaining to the regulation of attorney advertising generally, the need to prohibit false or misleading claims about attorneys or the services they render, and how those rules operate in a world of social media. State bar associations across the United States are making every attempt to keep up with the constantly evolving social media age and the fundamental changes respecting the methods by which how attorneys may advertise. With such attempts, the state bars are seeking a balance between protecting their lawyer members and the lawyers’ potential clients. But some argue such protection is overbroad, and imposed at the cost of an attorney’s first amendment rights. Indeed, one Florida law firm has filed a federal lawsuit against the Florida State Bar alleging violations of the firm’s First Amendment rights.
If a nurse discloses confidential patient information to a third party without authorization, and for reasons unrelated to the patient’s treatment, can the medical company that employs the nurse be held strictly liable for breach of fiduciary duty to maintain the confidentiality of personal health information? New York’s highest court has said no.In Doe v. Guthrie Clinic, the plaintiff was treated at the Guthrie Clinic Steuben (the “Clinic”) for a sexually transmitted disease (“STD”). A nurse at the Clinic recognized plaintiff as the boyfriend of her sister-in-law, which apparently prompted the nurse to access plaintiff’s medical records. During plaintiff’s treatment, the nurse sent six text messages to her sister in law discussing the details of plaintiff’s medical condition, i.e., his STD. Within five days of his treatment, plaintiff learned of these text messages and called the Clinic to complain about the nurse’s behavior. The Clinic fired the nurse. It also sent plaintiff a letter confirming that his confidential information had been improperly accessed and disclosed, and stating that appropriate disciplinary measures had been taken.
Akamai sued Limelight, alleging that it directly infringed and induced others to infringe its patented method for more efficiently delivering content on the internet by placing content elements on replicated servers and modifying a web page to retrieve certain information from those replicated servers, as opposed to the original servers. Limelight maintained a network of servers that replicated content providers’ web pages, but Limelight did not modify the web pages. Instead, it provided instructions for the content providers to do so themselves.
On Friday, the Supreme Court announced that it granted certiorari and will hear Limelight Networks, Inc.’s appeal from the Federal Circuit’s fractured en banc decision in Akamai Technologies, Inc. v. Limelight Networks, Inc. (U.S. Supreme Court Case No. 12-786, Federal Circuit Case No. 2009-1372)
Learn more about how you can address diversity issues in your practice and during trial at DRI’s Medical Liability and Health Care Law Seminar, taking place at the Cosmopolitan Hotel in Las Vegas March 20–21, 2014. You will not want to miss the presentation on “Diversity in the Courtroom: Putting the Odds in Your Favor.” Click here to register for this program.
“Diversity” is a concept at center stage in today’s ever changing world. And, all of us have heard or used the phrase “be politically correct.” Diversity can be visually obvious such as age, gender, and race. But, there are many facets of diversity that are not visual such as religion, politics, sexual preference, etc. And, even if diversity is totally obvious, oft times we simply don’t know what to do with diversity! Do we avoid eye contact, or address it head on? As attorneys, how do we tap into the power of diversity to make us better people, counselors, colleagues and litigators? None of us want to be the next Paula Dean or Duck Dynasty patriarch! As lawyers what do we need to know about diversity and trial tactics to provide our clients with the best defense? In a medical case it’s a given that throughout the case we will encounter many people with who look different than us, practice different religions, come from different cultures, and so on. From the patients, to the admissions clerk, to the nursing staff, to doctors, clients and jurors, the various human differences are mind boggling. How do we go from “tiptoeing” around our differences to weaving diversity into our cases to achieve winning strategies?
To the bloggers and readers of DRI Today:DRI would like to use this opportunity to thank you for your commitment, once again, to the DRI Today blog. Throughout the course of the year this blog has received multiple entries as well as several new bloggers, representing nearly every substantive law committee and practice area, and for that, we say THANK YOU.
In Eric Glatt and Alexander Footman, et al., v. Fox Searchlight Pictures, Inc., former interns Glatt and Footman brought suit against Fox in 2011, seeking class certification for more than one hundred interns and back pay for work done for the company on the film Black Swan. While the U.S. Supreme Court has upheld unpaid internships, such internships must be for training purposes. Glatt and Footman claim their internships, which consisted of getting coffee and taking out the trash, were anything but that. Citing the Labor Department’s six-prong test that must be met in order for an internship to be legally unpaid, District Judge William Pauley permitted the class certification and granted summary judgment for the plaintiffs, ruling the interns were in fact employees because the picture company had formal and “significant” control over the interns.
The U.S. Court of Appeals for the Second Circuit has granted two petitions to appeal trial court decisions in employment cases concerning whether interns qualify as employees and therefore are entitled to minimum wage and overtime protections. The two cases in question involve similar facts, however, the trial courts arrived at exact opposite conclusions.
When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should  refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and  shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified.
The law in California has been established for some time regarding a lawyer’s duties when an opposing counsel inadvertently produces an attorney client/work product protected document: