Code of Federal Regulations
Health care provider statement of fault during an apology prohibited from admission into evidence in a civil action under R.C. 2317.43
The Supreme Court of Ohio has held that “for purposes of R.C. 2317.43(A), a ‘statement * * * expressing apology’ is a statement that expresses a feeling of regret for an unanticipated outcome of the patient's medical care and may include an acknowledgment that the patient's medical care fell below the standard of care.” As such, the health care provider’s statements of fault or admission of liability made during the course of an apology or commiserating with a patient or family are prohibited from admission into evidence in a civil action under R.C. 2317.43. See Decision.
Nov 17, 2017 7:26 PM
New York Takes Aim at Title Insurance Marketing Practices
“The New York Department of Financial Services ("DFS") issued two final regulations on October 17, 2017 that follow a DFS investigation into the marketing practices and fees charged by title insurance industry members. The DFS stated that the investigation revealed that members of the title industry spend millions each year in "marketing costs" provided to attorneys, real estate professionals, and mortgage lenders in the form of meals, gifts, entertainment, and vacations and then include those expenses in the calculation of future title insurance rates. The DFS had already implemented emergency regulations to address those practices. The recent final regulations represent permanent guidelines on certain behavior the DFS deems prohibited and permissible under the state's title insurance statutes.” See Article.
Nov 17, 2017 7:24 PM
Employer vacation policy requiring employees who worked for less than one year to forfeit vacation pay not in violation of California state labor laws
The California Court of Appeals has found that an employer’s vacation policy requiring employees who worked for less than one year to forfeit vacation pay was not in violation of California state labor laws. The Court found that that the vacation policy “lawfully provided that employees do not begin to earn vacation time until after their first year.” The plaintiff in this action did not work more than a year and as such did not have any vested or accrued vacation pay. See Decision.
Nov 17, 2017 7:23 PM
House of Representatives passes Tax Cuts and Jobs Act
The U.S. House of Representatives has voted to pass the Tax Cuts and Jobs Act. The Act passed 227-13 on November 16. See Final Vote.
Nov 17, 2017 7:22 PM
Wyoming Supreme Court: Wyo. Stat. Ann. § 39-15-105(a)(iii)(A) limits the manufacturers' sales tax exemption to ingredients and components of the final product
The Supreme Court of Wyoming has affirmed the Board of Equalization’s decision in the case of Pacificorp v. Department of Revenue. The Department had ruled against PacificCorp after PacifiCorp sought a ruling that the purchase of certain chemicals used in the process of generating electricity qualified for a manufacturers’ or wholesalers’ sales tax exemption. The Court found that the chemicals used do not enter or become a component part of the electricity and “the Board of Equalization did not err in interpreting Wyo. Stat. Ann. § 39-15-105(a)(iii)(A) as limiting the manufacturers' sales tax exemption to ingredients and components of the final product.” See Decision.
Nov 17, 2017 7:21 PM
Preliminary injunction ordered restricting City of St. Louis' reaction to protesters
On November 15, the Eastern District Court of Missouri issued a preliminary injunction restricting the City of St. Louis’ reaction to protesters. The order restricts when the City can declare an unlawful assembly, and order use, use or threaten use of chemical agents including pepper spray. See Order.
Nov 17, 2017 7:19 PM
New York State Jumps on the Predictive Scheduling Bandwagon and Issues Proposed Scheduling Rules
“On the eve of the November 26, 2017 effective date of New York City's own predictive scheduling regulations that affect retail and fast food employers, the New York State Department of Labor has issued proposed predictive scheduling regulations for certain industries. The proposed regulations would revise the Minimum Wage Order for the Miscellaneous Industries and Occupations to limit employers' ability to schedule employees for on-call shifts and require employers to pay employees for cancelled shifts and newly issued shifts. If the proposed regulations become effective, New York State would become the second state in the country to implement state-wide predictive scheduling rules.” See Article.
Nov 17, 2017 7:17 PM
District Court affirms Bankruptcy Court's denial of motion to discharge student loan debt reaching more than $500,000 in total
The District Court of Illinois has affirmed a Bankruptcy Court denial of a motion to discharge student loan debt and a motion to enter a declaratory judgment that the Illinois Attorney Registration and Disciplinary Commission (ARDC). The Appellant is an attorney whose law license was suspended until at least September of 2018 after he misappropriated client funds, lied to the police and falsified bank records. The Appellant also has over $500,000 in student loans, of which he had paid $11,000 over a 37-year period. The Court found a lack of jurisdiction over the claims against ARDC and found the student loan debt not dischargeable under 11 U.S.C. § 523(a). The Court declined “to reward Rosen's choices at the expense of American taxpayers.” See Decision.
Nov 17, 2017 7:16 PM
Florida Supreme Court: Physicians’ Peer Reviews Not Protected from Public Disclosure
“In Edwards v. Thomas, a decision released on Oct. 26, 2017, the Florida Supreme Court reversed the decision of the Florida Second District Court of Appeal and held that an analysis of a medical malpractice claim sent by an attorney to an external medical review company, "M.D. Review," in anticipation of a lawsuit by Amber Edwards was not protected by the attorney work product privilege. The state's high court ruled that the external peer review report was "fact work product" and was otherwise subject to disclosure under Article X, Section 25 of the Florida Constitution (the "Patient's Right to Know" Amendment, aka Amendment 7)” See Article.
Nov 16, 2017 9:33 PM
Injury at medical clinic, not related to medical services, does not have a MICRA one-year statute of limitations
The California Court of Appeals has reversed the trial court’s application of the Medical Injury Compensation Reform Act’s (MICRA) one-year statute of limitations for professional error. The plaintiff was injured after she tripped on a scale in a medical clinic, that had been moved while he was in the exam room and was subsequently, partially obstructing the path. She filed suit almost two years later. The Court of Appeal found that the application of the one-year statute of limitations for professional negligence was in error, as the injury had no connection to the provision of medical services, but rather resulted from a breach of obligation to maintain the premises in a manner preserving the safety of all users. See Decision.
Nov 16, 2017 9:32 PM
Missouri AG subpoenas Google in possible antitrust violation investigation
“Missouri Attorney General Josh Hawley announced [on November 13] that his Office has issued an investigative subpoena to Internet giant Google, Inc., in connection with an investigation into the company’s business practices. Specifically, the investigation will seek to determine if Google has violated the Missouri Merchandising Practices Act—Missouri’s principal consumer-protection statute—and Missouri’s antitrust laws.” See Press Release.
Nov 16, 2017 9:31 PM
Texas Hailstorm Bill Took Effect September 1
The Texas Hailstorm bill went into effect on September 1, 2017. The bill was created to “address abusive hailstorm litigation and improve transparency in the handling of hailstorm claims . . . the Hailstorm Bill accomplishes the majority of its objectives through the creation of Chapter 542A of the Texas Insurance Code.” See Article.
Nov 16, 2017 9:31 PM
New York DFS Tightens Cybersecurity Gaps
“Equifax takes no deposits and makes no loans, but New York now says that it, as well as all other consumer reporting agencies, must protect consumer data to the same degree as banks and other financial institutions. On September 18, the New York Department of Financial Services (DFS) took significant steps in response to the cyber-security attack at Equifax that compromised the personally identifiable information (PII) of millions of Americans. Among the categories of information compromised were names, Social Security numbers, birth dates, addresses, and, in some cases, drivers' license numbers, as well as the credit card numbers of approximately 209,000 people. Also, in direct response to the Equifax breach, the DFS issued guidance instructing financial institutions to review their information technology, identity theft, and fraud prevention programs.” See Article.
Nov 16, 2017 9:30 PM
Pardon of Joe Arpaio does not mean conviction will be erased
The U.S. District Court of Arizona has dismissed a motion for vacatur and dismissal with prejudice in the case of Joseph M. Arpaio. The Court reasoned that while a pardon releases the wrongdoer from punishment, it does not erase a judgment of conviction. As such, the Court found that “Defendant accepted the pardon after that question [of guilt] was resolved, but before a judgment of conviction was entered. Therefore, the only matter mooted by the pardon was Defendant’s sentencing and entry of judgment, the hearing for which was duly vacated.” See Decision.
Nov 16, 2017 9:29 PM
4th Circuit finds memorial cross on public land in violation of the Establishment Clause
The 4th Circuit Court has found that a 40-foot tall Latin cross that was constructed on public property in memory of soldiers who died in World War I is in violation of the Establishment Clause of the U.S. Constitution. Although the district court had held that the cross had a secular purpose, the 4th Circuit reversed and noted that the Latin cross is a core symbol of Christianity and in this case, is “prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland.” See Decision.
Nov 16, 2017 9:27 PM
Florida’s Minimum Wage Rises to $8.25 in 2018
“Florida's minimum wage will increase effective January 1, 2018 as follows: (1) Florida's minimum wage will increase by 15 cents from $8.10 to $8.25 per hour. (2) Florida's minimum wage for tipped employees will increase by 15 cents from $5.08 to $5.23 per hour.” See Article.
Nov 16, 2017 9:24 PM
San Fernando Valley Business Journal
Nov 16, 2017 11:31 AM
Los Angeles Business Journal
Nov 16, 2017 11:31 AM
5th Circuit U.S. Court of Appeals Reverses PHMSA
“The 5th Circuit issued a lengthy opinion on August 14, 2017, reversing most of the violations of a PHMSA enforcement action that began in November 2013 in conjunction with investigation of a failure on the Pegasus Pipeline.” See Article.
Nov 15, 2017 8:55 PM
Oklahoma Supreme Court approves Rules for Using the Oklahoma Court Information System of the Oklahoma Supreme Court
The Supreme Court of Oklahoma has approved and adopted the “Rules for Using the Oklahoma Court Information System of the Oklahoma Supreme Court, 20 O.S., Ch. 18, App. 3” as of October 1, 2017. “The purpose of these Rules is to make clear that certain uses of Oklahoma Court Information System (O.C.I.S.) resources are and are not appropriate by state and county employees, officials, public entities, and affiliate organizations connected to O.C.I.S.” See Order.
Nov 15, 2017 8:55 PM
Prospective juror's silence in response to rehabilitative questioning sufficient to conclude juror rehabilitated under certain circumstances
The Supreme Court of Colorado has held that “a prospective juror's silence in response to rehabilitative questioning constitutes evidence sufficient to support a trial court's conclusion that the juror has been rehabilitated when, in light of the totality of the circumstances, the context of that silence indicates that the juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.” See Decision.
Nov 15, 2017 8:53 PM
ERISA, as amended by the Patient Protection and Affordable Care Act, does not ban lifetime benefit maximums for certain retiree-only plans
The 9th Circuit Court has “reversed the district court's grant of summary judgment in favor of the defendants in an ERISA action regarding the denial of a welfare benefit plan participant's claim for medical benefits on the basis of the plan's lifetime benefit maximum.” The Court found that “ERISA, as amended by the Patient Protection and Affordable Care Act, does not ban lifetime benefit maximums for certain retiree-only plans.” See Decision.
Nov 15, 2017 8:51 PM
Behavioral Advertising Company that Dropped “Zombie” Cookies Can’t Use Verizon’s Arbitration Clause to Avoid Class Action Lawsuit
“The 9th Circuit Court of Appeals ruled that a non-party online behavioral advertising firm could not benefit from the arbitration clause in the agreement between Verizon and its customers because it was not a party to that agreement.” See Article.
Nov 15, 2017 8:51 PM
6th Circuit Court: alleged inclusion on "Selectee List" does not implicate a liberty interest protected by the 5th Amendment
The 6th Circuit Court has affirmed the judgment of the district court finding that an alleged inclusion on a “selectee list” does not implicate a liberty interest protected by the 5th Amendment. The plaintiffs had filed suit after allegedly experiencing “excessive delays” and secondary screenings every time they travel, causing them to suffer humiliation and missed flights. The plaintiffs believe that they are on the “selectee list” that designates individuals for enhanced security screening and that this is the cause of their delays. See Decision.
Nov 15, 2017 8:50 PM
Non-Breaching Party May Choose Between Liquidated Damages and Actual Damages if the Contract so Allows
“The Supreme Court of Colorado has held that a contractual provision that gives a non-breaching party the option of choosing between recovery of liquidated damages and pursuing actual damages is enforceable so long as the two remedies are exclusive. The dispute in Ravenstar was over the failure of certain buyers to close on the purchase of condominium units. After the buyers breached, the developer/seller, kept their deposits as liquidated damages as permitted by the purchase and sale agreements.” See Article.
Nov 15, 2017 8:49 PM
Missouri Court of Appeals finds lack of jurisdiction in case against Johnson & Johnson
The Missouri Court of Appeals has reversed and vacated the trial court’s judgment in the talc body powders case filed against Johnson & Johnson. The Court found the U.S. Supreme Court decision in Bristol-Meyers Squibb controlling in which the Supreme Court found that “specific personal jurisdiction requires a connection between the forum state and the specific claims at issue. ‘When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the state.’” The Missouri Court reasoned, “Fox provides no Missouri precedent illuminating a procedural path for this court to stay a jury verdict pending re-litigation of facts supporting jurisdiction. Simply put, this court declines to remand the case in its advanced posture.” See Decision.
Nov 15, 2017 8:48 PM
7th Circuit affirms denial of expert testimony where officers misconduct was easily within the grasp of a lay jury
A Chicago police officer was charged for willfully depriving a convenience store employee of his 4th Amendment right to be free from excessive force at the hands of a law enforcement officers after the officer was caught on tape punching, beating and kicking the employee for approximately two minutes for no apparent reason. The defendant-officer tried to introduce expert testimony of a former officer who would testify that the actions were consistent with departmental standards. The Court excluded the expert witness and the 7th Circuit Court affirmed, stating “[t]he misconduct alleged here was easily within the grasp of a lay jury, so the judge did not abuse her discretion in excluding the expert.” See Decision.
Nov 15, 2017 2:32 AM
Wisconsin Court Holds Parsonage Allowance Unconstitutional
“[A] U.S. district court judge in the Western District of Wisconsin ruled that it is unconstitutional for the government to favor religion by not taxing tax ministers on housing allowances provided by their churches. This ruling does not take effect until after any appeals are complete, so it should not affect any ministers for the time being. Furthermore, the ruling addresses only cash housing allowances; ministers living in church-provided housing are not affected.” See Article.
Nov 15, 2017 2:30 AM
9th Circuit grants in party an emergency stay on preliminary injunction of "travel ban"
The 9th Circuit Court has granted, in part, a motion for emergency stay of the district court’s preliminary injunction regarding the “travel ban.” The Court stated that the preliminary injunction is stayed “except as to ‘foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.’” See Order.
Nov 15, 2017 2:26 AM
Cyber Spending Expected to Increase
“The Defense Department recently elevated U.S. Cyber Command to a full-fledged, unified combatant command, as threats in the digital domain continue to grow. However, the long-term budgetary implications of the move remain unclear, said a leading analyst. President Donald Trump requested $647 million for Cybercom in fiscal year 2018, a 16 percent increase from the previous year. The extra money would help the command make the transition and beef up its mission force, officials have said. The buildup is slated to be completed by the end of 2018.” See Article.
Nov 15, 2017 2:25 AM