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April 14, 2014
On Monday, April 14, 2014, the U.S. Circuit Court of Appeals for the District of Columbia (the DC Circuit) struck down part of the federal rules requiring publicly traded companies to report on their use of “conflict minerals,” but let stand other reporting requirements in the rules. In particular, the opinion strikes down only the requirement that companies make a specific statement regarding whether they found their products contained minerals linked to armed conflict in central Africa on First Amendment grounds. The decision comes a mere six weeks before public companies are required to file their first reports on Form SD under the rules.
April 11, 2014
A recent decision by the West Viginia Supreme Court of Appeals has now paved the way for public bodies, including boards of education, to impose a reasonable hourly search fee for Freedom of Information Act (FOIA) requests.
April 10, 2014
In an opinion issued in BG Group PLC v. Republic of Argentina, 134 S. Ct. 1198 (2014), the United States Supreme Court found that a prerequisite to arbitration was a procedural issue to be decided by the arbitration panel and not an issue for the courts to decide. In effect, the opinion reinstated the award by an arbitration panel of $185 million in favor of the British firm, BG Group, PLC and against the Republic of Argentina.
April 10, 2014
The perception of corruption in Latin America is a stigma that the counties are working to overcome. It’s no surprise that “Greasing Palms-Current Regulatory and Enforcement Trends in Anti-Corruption in Latin America” was a lead panel at the recent Latin American Regional Forum Conference of the International Bar Association (IBA), the global voice of the legal profession. The forum was held March 12-14, 2014 in Punta del Este, Uruguay. More than 600 lawyers attended from Latin America along with several attorneys from the United States and Europe. Harvey Jay Cohen, Chair of Dinsmore’s International Business Practice Group and an IBA Committee Officer, served on the Anti- Corruption panel led by top Argentine and Brazilian lawyers. The Associate General Counsel of GlaxoSmithKline and a forensic lawyer from Ernst & Young, New York also served as panelists.
April 9, 2014
April 8, 2014
April 7, 2014
Violations may lead to suits, penalties under Clean Water Act
March 31, 2014
March 31, 2014
The Office of Civil Rights (OCR), in collaboration with the HHS Office of the National Coordinator for Health Information Technology (ONC) and the Office of General Counsel (OGC), released a new security risk assessment (SRA) tool for use by small to medium sized health care providers in order to conduct the risk assessments required under the HIPAA Security Rule.
March 31, 2014
The Office of Federal Contract Compliance Programs (OFCCP) issued new regulations, which went into effect on March 24, 2014, which impact data collection and analysis for veteran and disabled job candidates and employees. A summary of the action steps that federal contractors and subcontractors covered by Section 503 of the Rehabilitation Act, as amended (“Section 503”) and the Vietnam Era Veterans Readjustment Assistance Act ("VEVRAA") must take are provided below.
March 27, 2014
On March 26, 2014 NLRB Regional Director Peter Sung Ohr found the Northwestern University football players who held scholarships are “employees” and may form a union. A labor association calling itself the “College Athletes Players Association” (CPA) filed a petition for a representational election of the scholarship-holding athletes on the Northwestern University football team. The University challenged the petition arguing that football players are students and not “employees” as defined by the National Labor Relations Act; and, therefore, CPA had no standing to seek to represent them.
March 27, 2014
Senate Bill No. 477 completed legislation, and as of the date of this Dinsmore & Shohl Education Law Practice Group Alert, the Bill is awaiting the signature of the Governor. The Bill, among other things, relates to the daily planning periods for classroom teachers found in W. Va. Code 18A-4-14.
March 21, 2014
Recent changes to the durable power of attorney health care (“DPAHC”) law went into effect on March 20, 2014. Previously, an executed DPAHC would not operate to authorize the attorney in fact to obtain the principal’s health information until a health care provider determined the principal had lost the capacity to make informed health care decisions. The law now allows a DPAHC to authorize the attorney in fact to obtain the principal’s health information immediately upon execution of the document, or at a later stated time, without the requirement of a determination of lack of capacity.
March 17, 2014
West Virginia Board of Education Policy 4350 provides legal guidance on the issues of the collection, maintenance, and disclosure of student data ("Policy 4350"). Most, if not all, West Virginia county boards of education have a policy in place that mirrors Policy 4350. Among other things, Policy 4350 sets "forth the conditions governing the protection of privacy and access of parents and students as it relates to the collection, maintenance, disclosure and destruction of educational records by agencies and institutions under the general supervision of the West Virginia Board of Education." 
March 17, 2014
On March 8, 2014, the West Virginia Legislature passed a comprehensive bill, primarily in response to the Jan. 9, 2014 leak of fluid containing 4- Methylcyclohexane Methanol (MCHM) from an aboveground storage tank into the Elk River upstream from a public water supply intake located in Charleston, West Virginia. The legislation creates a regulatory framework for certain aboveground storage tanks (“ASTs”), imposes new requirements on public water utilities, and directs the Bureau of Public Health to solicit the assistance of federal agencies inconducting a study of the potential long-term health effects of the Jan. 9 release.
March 17, 2014
In recent weeks, multiple news sources have reported that the Ohio Senate voted to “ban LEED” when it passed Concurrent Resolution Number 25 (“SCR 25”). However, a closer look at SCR 25 reveals that it does not actually ban anything, but merely represents a statement of the Ohio Senate’s formal dissatisfaction with the U.S. Green Building Council's (“USGBC”) LEED v4.
March 14, 2014
Lenders that exercise their rights to foreclose upon collateral are often met with a bankruptcy filing near or shortly after the date of sale. Obviously, if a lender learns of a bankruptcy prior to the foreclosure, the sale should not proceed unless and until relief from the bankruptcy stay is granted by the Bankruptcy Court. But, what are the lender’s rights when a foreclosure sale is held with a bankruptcy filing occurring hours or days after the sale? Based upon a recent bankruptcy court decision, it appears that part of the answer depends on whether the bankruptcy is in the Northern or Southern District of West Virginia.
March 14, 2014
Mine operators across the United States are facing an unprecedented number of miners’ discrimination complaints filed under Section 105(c) of the Mine Act. The rise in discrimination complaints can be partly attributed to job reductions in this tough economic climate; MSHA’s renewed focus on educating miners of their rights under Section 105(c); and MSHA’s devotion of the resources to thoroughly investigate such claims. A miner who files a discrimination complaint with MSHA after losing his or her job has a low burden of proof at the initial stages of the proceeding, which often results in temporary reinstatement or economic reinstatement of the miner pending the results of litigation. At the initial stages, the miner merely has to show that his complaint was “not frivolously brought” to trigger the miner operator’s burden of temporary reinstatement pursuant to the statute. This low evidentiary threshold is tantamount to putting the proverbial cart before the horse as the miner is granted relief, even if only temporary, before actually proving the merits of his or her claims.
March 13, 2014
Human resource departments are constantly challenged with solving new problems presented by the changing composition of the workplace. This is particularly true this year and for the upcoming years as Baby Boomers, those currently between the ages of 50 and 68, begin to retire. As Baby Boomers exit the workforce, human resource professionals will be forced to fill the leadership roles in their organizations with a younger generation of employees. It is important that human resource departments develop this process now, as leadership development can take a great deal of time. The key to developing an employee into a successful leader is to set realistic expectations for, give feedback to, mentor, and appreciate junior employees.
March 10, 2014
In February 2012, the United States Department of Housing and Urban Development (HUD) launched the FHA Low Income Housing Tax Credit Pilot program under the mandate of the Housing and Economic Recovery Act of 2008. The purpose of this act was to streamline the FHA mortgage insurance process for projects receiving equity contributions pursuant to the Low Income Housing Tax Credit (LIHTC) equity program. The Pilot program seeks to streamline the application and processing of FHA-insured, 223(f) mortgage loans for LIHTC projects.
February 27, 2014
The July 2013 alert, Federal Government Aggressively Pursuing Health Care Fraud, stressed the importance of self-audits for health care providers. With the Obama administration taking a hard-line approach to repeat offenders and high Medicare billing physicians, self-audits are more important than ever.
February 21, 2014
The Dodd-Frank Wall Street Reform and Consumer Act has been in effect for nearly four years, and almost 75 percent of the required regulations have been written or proposed. Issued regulations help to clarify requirements, but the climate created by expectations of regulators continues to create additional challenges for boards.
February 20, 2014
A loan transaction is generally not thought of as resulting in a taxable event, but it can be if the borrower is a U.S. corporation with a foreign subsidiary. More specifically, a loan transaction can trigger a deemed dividend from the foreign subsidiary to U.S. corporation if the credit agreement provides for any of the following.
February 20, 2014
Ohio physicians now have another reason to be familiar with and utilize the Ohio Automated Rx Reporting System (“OARRS”) as a component of their practices. While OARRS checks have been mandatory under certain circumstances since late 2011, the Ohio State Board of Pharmacy has just released information concerning a new OARRS feature, which stands to further enhance medication utilization review, monitoring and compliance. Since late 2006, information on prescriptions classified as Schedule II-V Controlled Substances, Carisoprodol and Tramadol has been collected and made available to practitioners and regulators through the OARRS prescription monitoring program. The Pharmacy Board has added a new feature to OARRS – the Practice Insight Report – to further aid Ohio health care providers.
February 13, 2014
The Obama Administration initially delayed the imposition of the employer “shared responsibility” payment (applicable under Internal Revenue Code section 4980H) which required all employers with greater than 50 employees to provide qualifying health care coverage for all full-time employees or be subject to a penalty on July 2, 2013. On Feb. 10, 2014, the U.S. Treasury Department released final regulations regarding the shared responsibility payment and again delayed imposition of this penalty for employers who have greater than 50 but less than 100 employees.
January 31, 2014
As we begin to hold personnel hearings for “Personnel Season” a question that seems to come up often concerns the listing of individual employee names on county board of education agendas. Many administrators are, understandably, concerned about revealing the names of employees who are recommended for various personnel actions, such as reductions in force (“RIF”) and transfers, while still complying with the West Virginia Open Governmental Proceedings Act.
January 29, 2014
Of all of the Supreme Court decisions in recent years, few have drawn more public interest (or outcry, depending on an individual’s political school of thought) than United States v. Windsor and Hollingsworth v. Perry and few Court decisions have impacted (if not legally, at least emotionally) the LGBT population in the same manner and scope as these cases. For many, however, the idea that the Supreme Court could reach two very different conclusions on what may initially appear to be the same legal issue has caused some to challenge the rational of those decisions.
January 29, 2014
Shifts in attitudes and changing social mores impact workplace dynamics in ways that are difficult to measure. In some instances, a change in social customs gives rise to the need for new laws, regulations or policies affecting the employer-employee relationship. The advent of social media illustrates this principle. The increased use of social media by people while at work or to communicate about work has created the need for guidelines about when and how employers can regulate an employee’s use of social media. In other instances, however, changes in the law instigate changes in the workplace. The protections available to lesbian, gay, bisexual and transgender (LGBT) workers is one of those instances. The shift in the law towards recognition of same-sex marriage leads to conversations in the workplace about individual sexuality. As revelation of sexual orientation becomes necessary for some purposes, such as enrolling a same-sex partner or spouse in an employer’s benefit plan, the potential for discrimination increases.
January 15, 2014
Under Kentucky law, limited liability companies have flexibility when fashioning the structure of their businesses. Kentucky’s governing law generally defers to the discretion of the limited liability company members, who are free to establish their business procedures and even vary from the default provisions established by the governing law. However, this freedom can be costly. If members do not draft clear articles of organization and operating agreements, resolving their future conflicts can prove expensive.
January 14, 2014
On January 8, 2014, the Office of Inspector General (“OIG”) updated the List of Excluded Individuals and Entities (“LEIE”). According to the LEIE, over 66,000 health care providers are currently excluded from all Federal health care plans. Health care providers receiving funding from Federal health care programs must determine if potential and current employees are excluded. Searching the OIG’s LEIE is a simple but necessary task.
January 14, 2014
Most Kentucky business owners know that owning their business through a formal entity, such as a corporation or limited liability company (LLC) has certain advantages. Many also know that to realize those advantages, they must maintain a distinction between themselves and the entity. Otherwise, they may open their personal assets up for attack by the entity’s creditors—a process known as “piercing the corporate veil.” Recently, the sole member of a Kentucky LLC found himself in the unusual position of asking that his own LLC be disregarded. The Kentucky Supreme Court refused. Although this case went against the business owner, the decision strengthens an important protection for single-owner entities generally.
January 14, 2014
On January 2, the Internal Revenue Service issued Revenue Procedure 2014-11, 2014-3 IRB 1, revising the procedures for retroactively reinstating the tax-exempt status of organizations that had that status automatically revoked for failure to file exempt organization tax returns for three consecutive years.
January 9, 2014
April 1, 2014 is the first day on which U.S. Citizenship and Immigration Services ("USCIS") may receive H-1B specialty worker petitions for the next fiscal year that begins on October 1, 2014. To qualify for the H-1B category, the position offered must be a specialty in which a bachelor's degree or its equivalent is normally the minimum requirement and the foreign national must hold a bachelor's level degree or its equivalent in the specialty defined by the position (this threshold can be met in some cases through a combination of education and work experience).
January 7, 2014
On December 3, 2013, the Supreme Court of the United States issued its opinion in Atlantic Marine Constr. Co. v. U. S. Dist. Court for the W. Dist. of Tex.,—U.S.—, 134 S. Ct. 568 (2013). At issue was a forum selection clause in a domestic construction contract, but the opinion instructs parties on the weight to be given forum selection clauses in contracts and the manner in which a party may challenge the plaintiff’s chosen forum.
January 2, 2014
Ohio law has undergone a number of developments concerning the appropriate means of notifying patients when a physician leaves a practice, as well as the proper steps for terminating a patient from a medical practice. Effective March 22, 2013, health care entities were required to advise patients when an employed physician left the entity or medical practice, regardless of whether the physician’s departure was a result of the employer’s or the practitioner’s decision.
December 30, 2013
Several states will ring in 2014 with new minimum wage and posting requirements for employers. For many states, this will be in the form of higher minimum wages, but a few have also updated their posting requirements. A complete listing of states (including the District of Columbia) with new wage and hour requirements can be found below. Employers should be certain that these changes are implemented and take proactive steps to ensure compliance with ever changing wage and hour laws and regulations. Taking a fresh look at FLSA exemptions, re-training supervisors and other management employees about off-the-clock work and evaluating compliance with meal and rest break obligations is a great way to start the new year and avoid liabilities and collective/class actions down the road.
December 27, 2013
With the proxy and annual reporting season just around the corner, public companies need to be alert to this year’s regulatory developments.
December 23, 2013
2013 brought many changes to employee benefit plans, and several more are coming in 2014. Dinsmore’s Compensation and Benefits Group wants you to be prepared for year-end and upcoming changes. If you need help with implementing any of these changes contact one of Dinsmore’s Compensation and Benefits attorneys.
December 20, 2013
The NFL’s Baltimore Ravens recently won an important victory off the field when the Fourth Circuit Court of Appeals upheld a district court’s ruling that uses of the Ravens’ original Flying B logo constituted fair uses of a copyright held by amateur artist Frederick E. Bouchat.
December 20, 2013
Digital copiers have been capable of storing information, including protected health information (PHI), for over a decade. However, it wasn’t until this year that the U.S. Department of Health and Human Services (HHS) announced its first Health Insurance Portability and Accountability Act of 1996 (HIPAA) breach settlement resulting from a digital photocopier.
December 17, 2013
As you make your holiday plans and prepare to ring in the New Year, it is also a great time to review your estate and tax plan. The following estate and tax planning tips may be useful in ensuring that your family has a protected and prosperous New Year.
December 16, 2013
Now more than ever, healthcare providers are looking to outsource their standard healthcare functions, such as medical record storage, to third party technology companies. Be mindful that any technology that stores or transmits protected health information must comply with HIPAA. Even though a third-party controls the record storage technology, the healthcare provider has the ultimate responsible for the privacy and security of its patients’ information.
December 16, 2013
The U.S. District Court for the Southern District of West Virginia has issued a number of decisions in the last several years touching upon the outer contours of jurisdiction under the Clean Water Act’s citizen suits provision (33 U.S.C § 1365), in most cases arising out of challenges to permits for coal mining operations. Its December 2, 2013 Memorandum Opinion and Order in Ohio Valley Environmental Coalition, Inc., et al. v. Hernshaw Partners, LLC (Civ. Action No. 2:13-CV-14851) is yet another such decision, although it involves the site of a former mining operation, and the effects of the significant rulings made by the court could extend far beyond the coal industry.
December 12, 2013
On December 5, 2013, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced its intent to launch an online complaint system that will provide workers another avenue to file whistleblower retaliation claims against their employers.
December 11, 2013
The Bureau of Workers’ Compensation just announced the timetable for moving to a modernized prospective payment system. As state fund employers are well aware, Ohio workers’ compensation premium is one of the few bills paid after the fact; payments for private employers are made in August and February for the six months which end on June 30 and December 31. All of this will stop in 2015 as the Bureau moves to a prospective payment system.
December 4, 2013
The Fifth Circuit weighed in yesterday on the ongoing discussion among courts regarding the enforceability of class/collective action waivers. While federal appellate courts have upheld collective action waivers and rejected the National Labor Relations Board’s position, some federal courts at the district court level have invalidated collective action waivers in reliance on the NLRB’s In re DR Horton decision, which found that arbitration agreements prohibiting employees from filing employment related class/collective actions violated the National Labor Relations Act. In this much anticipated decision, the Fifth Circuit reviewed and generally rejected this NLRB position.
December 3, 2013
In the 2012 edition of its Trade Finance Guide, the International Trade Administration for the first time discussed escrow service as a variation on cash in advance and a payment method available to U.S. exporters. The ITA’s inclusion of escrow services in the guide and the emergence of companies providing escrow services reflect a concern common to all exporters: the need to find a payment system that provides some level of security at a low price. Just as with bank payment obligations, escrow services are an attempt to fill the gap between open account trade and cash in advance. As escrow services are used more frequently and offered more often, exporters should be aware of some of the benefits and risks in using the service.
December 2, 2013
The Consumer Financial Protection Bureau (CFPB) recently released the final rule combining the Truth in Lending Act (TILA) and Real Estate Settlement Procedures Act (RESPA) mortgage disclosure rules and forms.
December 2013
In a 5-4 decision, the Supreme Court on June 26 held in U.S. v. Windsor that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional under the equal protection clause of the Fifth Amendment. Section 3 of DOMA defined “marriage” as a legal union between one man and one woman as husband and wife and “spouse” as a person of the opposite sex who is a husband or wife. However, the court emphasized that its holding is confined to marriages legally recognized by a state and does not apply to civil unions or legal domestic partnerships.
November 18, 2013
On October 15, 2013, the Consumer Financial Protection Bureau (“CFPB”) issued a bulletin providing guidance on certain mortgage servicing rules which are to take effect on January 10, 2014 under the Real Estate Settlement Procedures Act (“RESPA”) and the Truth in Lending Act (“TILA”). One important section of this new guidance relates to the adoption and implementation of policies and procedures for dealing with successors in interest of deceased borrowers on mortgage loans.
November 18, 2013
One of the most significant sources of litigation risks for niche businesses occurs when the statutory laws governing their conduct fail to reflect the real-world context of the industries in which they operate. Because even well-intentioned laws are often drafted and ratified by legislators with no experience in the affected industry, such laws may present high risk exposure or compliance costs to businesses that find themselves held to an abstract legal standard that they logistically cannot implement.
November 18, 2013
Businesses often request legal assistance with breach of contract disputes. They say that there can be no doubt that their counterparty breached their contract, and they know that they are entitled to damages for the breach. But some are concerned that their counterparty will dispose of cash or other assets before a court can issue a judgment in their favor. So they ask their counsel what can be done to freeze or take possession of their counterparty’s assets, or force their counterparty to deposit money with the court, as soon a Complaint is filed.
November 15, 2013
The Employment Non-Discrimination Act (“ENDA”) passed the United States Senate on November 7, 2013, but is expected to languish and fail in the House. However, even if ENDA fails, this does not mean that employers need not worry about discrimination against lesbian, gay, bisexual, or transgender (“LGBT”) employees. While ENDA is designed to codify protections for LGBT employees and expand their substantive rights, employers need to be mindful that a myriad of obligations already exist under federal, state, and local law.
November 14, 2013
The Internal Revenue Service (IRS) has recently issued guidance providing a modicum of relief to the forfeiture requirements for flexible spending accounts (FSA) under a Section 125 (or “Cafeteria”) Plan. FSA’s are utilized to reimburse employees for allowable medical expenses incurred during a plan year. IRS regulations require that amounts credited to an employee’s FSA that are unused at the end of the plan year must be forfeited. However, a small grace period exists allowing employees to spend unused amounts from the previous year on expenses those employees incur after the end of the plan year but during the first two months and 15 days of the following year.
November 12, 2013
The Ohio Boards of Medicine, Pharmacy, Dentistry, and Nursing have adopted new guidelines pertaining to prescribing opioid medication. The guidelines are part of Ohio’s continuing effort to combat and reduce prescription drug abuse and diversion, and intended to further caution health care practitioners when prescribing high levels of painkillers for long-term use. Based on this objective, these agencies will be encouraging Ohio physicians and health practitioners to utilize Morphine Equivalent Dosing (“MED”) to evaluate or reevaluate the efficacy and safety of a patient’s treatment plan when it involves opioids.
November 11, 2013
The Telephone Consumer Protection Act of 1991, 47 USC 227, et. seq. (“TCPA”) and the accompanying Federal Communications Commission rules (47 CFR 64.100, et. seq.) ban many phone calls and text messages that are sent to a mobile phone using an automatic dialing system (“ATDS”) as defined in the TCPA. The ban is complete unless the recipient previously gave consent to receive the message or the message was sent for emergency purposes. Prior to October 16, 2013, consent could be inferred from an existing business relationship between the sender and the recipient.
November 6, 2013
As required by the Dodd-Frank Act of 2010, the Securities and Exchange Commission (SEC) adopted new rules for all public companies and foreign private issuers that use conflict minerals. The conflict minerals rules require extensive supply chain due diligence and disclosure. Although controversial, the Conflict Minerals Rules have survived a challenge in federal district court. As a result, public companies should be well on their way to completing the necessary steps to provide the mandated disclosure which is due by May 31, 2014 on new Form SD.
November 6, 2013
On October 7, the Secretary of State for the Home Department in the UK released a policy paper entitled, Serious and Organized Crime Strategy, in which the Secretary discussed the government’s strategy towards combating organized crime and among other things, bribery and corruption. The strategy announced may have lasting implications for companies doing business in the UK.
Nov. & Dec. 2013
October 29, 2013
The need to enforce nondiscrimination policies and conduct thorough investigations into claims of workplace harassment is not new advice, but it is advice that bears repeating. Allegations of harassment that go uninvestigated, or are investigated improperly, can cost your company dearly.
October 28, 2013
A recent Ohio Court of Appeals decision highlights the importance of careful drafting in real estate documents and the need for due diligence in property transactions. Sellers of land sometimes intend to reserve a right to repurchase the property if certain conditions are not met. If a dispute occurs, the courts, not the parties, interpret that language.
October 28, 2013
October 21, 2013
As we enter into autumn, we see the leaves change colors and the squirrels prepare for winter. We may want to take a lesson from the squirrels and put some extra funds aside in anticipation of any extra tax burden that may come due on April 15, 2014. This year, a number of income tax changes went into effect. These changes could increase your federal income tax bill. In some cases, your employer may not be obligated to withhold the full amount of payroll tax or you may not have adjusted your estimated tax payments to account for these tax changes.
October 17, 2013
Global mergers and acquisitions activity during the first half of 2013 was down 8 percent from last year's tally, but recent developments have changed the outlook for the rest of the year, thanks to a pair of massive telecommunications deals.
October 14, 2013
State sovereignty over the regulation of coal mining is again under attack by anti-industry groups. In Montana Environmental Information Center, et al. v. Stone-Manning, et al., Appeal No. 13-35107 (Ninth Circuit Court of Appeals), the Sierra Club and other appellants (“Sierra Club”) are attempting to convince a federal appeals court to disregard the plain meaning of the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”), by recognizing federal court jurisdiction to hear their complaints about the manner in which the Montana Department of Environmental Quality (“MDEQ”) administers its state program.
October 14, 2013
As suggested in a “Guidance Memorandum” issued by the Obama Administration in November 2009, and solidified through a Memorandum issued by the U.S. Department of Interior’s Office of Surface Mining (“OSM”) in November 2010, the meaning of state “primacy” under the federal Surface Mining Control and Reclamation Act of 1977 (“SMCRA”) has been greatly diminished in recent years. Indeed, the concept of exclusive state jurisdiction to regulate coal mining (as clearly intended by Congress in passing SMCRA) remains under attack.
October 10, 2013
Health care providers are well aware of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), taking precautions to ensure that protected health information (“PHI”) is protected on computers, phones, and in filing cabinets. It is standard provider practice to wipe the hard drives on computers and phones, but what about the office photocopier?
October 10, 2013
Once taken into a lender's inventory, these "OREO" (Other Real Estate Owned) properties can pose challenges to lenders if they are not prepared. This article will provide some suggestions for lenders faced with managing OREO properties post-foreclosure.
October 3, 2013
The National Labor Relations Board (NLRB) has furloughed 1600 of its 1611 employees as a result of the failure of the United States government to reach an agreement to fund the federal agencies.
October 2013
The American Saddlebred is as old as the United States. Colonists in the early 1700s started crossing Thoroughbreds with an easy-gaited breed known as the Narragansett Pacer. The result was a sturdy horse with a comfortable lateral gait. With the addition of Arabian and Morgan blood, the "Kentucky Saddler" was and is prized for its beauty, intelligence, stamina and pleasant temperament.
September 30, 2013
A recent Ohio Court of Appeals decision sheds some light on the enforcement of confession of judgment (“cognovit”) provisions in commercial loan documents. These provisions remain enforceable in a few states, including Ohio.
September 30, 2013
Federal courts have issued two notable rulings recently that may have implications for other pending disputes in West Virginia, and could affect future lease negotiations between natural gas owners and producers. These decisions are just two of the latest in a series of rulings issued in this area over the last several years, as various challenges to gas leases and production-related activities wind their way through the federal and state court systems.
September 27, 2013
When Katie Shoultz and her parents, Julie and A.J. Shoultz, began their quest to obtain a sport-horse farm of their own in the Bluegrass eight years ago, they found that most offerings on the market at the time were either too big or too small for them. Instead of buying an established horse operation, they purchased 50 acres of raw land on Paris Pike in 2005 and transformed it into Isidore Farm.
September 20, 2013
For the first time in 10 years, the National Labor Relations Board (“NLRB” or the “Board”) has a full slate of approved members. On August 12, 2013, the Board swore in four Senate-confirmed members. Late last month, the Senate confirmed all five of President Obama’s nominees: Mark Gaston Pearce, the current chairman; Kent Hirozawa, chief counsel to NLRB Chairman Pearce; Harry Johnson III, a labor and employment partner from Arent Fox LLP; Philip Miscimarra, a labor and employment partner at Morgan, Lewis & Bockius; and Nancy Schiffer, associate general counsel at AFL-CIO. The two Republican confirmations, both coming from private practice with experience representing employers primarily, are Mr. Johnson and Mr. Miscimarra. The last time the Board had a full slate of approved members was August 21, 2003.
September 19, 2013
The Securities and Exchange Commission (the “Commission”), by a 3-2 vote, proposed rules to require companies to disclose the median annual total compensation of all employees and the ratio of that median to the annual total compensation of the company’s chief executive officer. These proposals are designed to implement Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank’). As proposed, the new rules provide flexibility in calculating median annual compensation for employees to reduce costs.
September 18, 2013
Global mergers and acquisitions (M&A) during the first half of 2013 was down 8 percent from last year's tally, but recent developments have changed the outlook for the rest of the year, thanks to a pair of massive telecommunications deals. The top transaction was Verizon Communications (VZ) agreeing to buy a 45 percent stake in Verizon Wireless from joint venture partner Vodafone PLC, in a deal valued at a whopping $130 billion. It's the third-largest M&A deal of all time, and was followed by Microsoft (MSFT) announcing that it will acquire Nokia's phone unit for nearly $7.2 billion. After a slow start, the summer’s activity has pushed global M&A activity across all sectors to $1.55 trillion so far in 2013, according to Thomson Reuters. That is a 1 percent bump over the same period in 2012. Global telecom M&A is now $231.6 billion, which is its highest YTD level since 2006. Other blockbuster deals are rumored or have since been announced.
September 18, 2013
Fueled by technological change, fantasy sports have enjoyed incredible growth in the twenty-first century. Since 1980, when writer Daniel Okrent explained his invention of ‘‘Rotisserie’’ major league baseball (MLB) to a few friends in an eponymous New York restaurant,1 fantasy sports has grown into a global business with over 35 million participants in North America alone.
September 17, 2013
On Wednesday, September 12, the Employee Benefits Security Administration (EBSA), which is a division of the Department of Labor (DOL), released another FAQ indicating that no penalty or fine will be applied for failing to provide the exchange notice. While this could be viewed as indicating that the Exchange Notice requirement is now optional, the statutory obligation to provide this notice still remains.
September 10, 2013
Many law firms today create in-house general counsel positions to advise the firm on various ethical, regulatory and risk-management issues, including malpractice claims. These individuals do not actively represent the firm’s clients. Instead, they advise the firm (and its lawyers) on firm-wide issues, specific conflicts and other individual-lawyer(s) issues covered by the applicable rules of professional conduct; usually this covers compliance with the rules of professional conduct, increasingly complex regulations, and disclosure obligations under major pieces of legislation (e.g., Sarbanes-Oxley). Often, in-house counsel will also serve as sole or additional counsel in a malpractice action against the firm.
September 9, 2013
Employers—regardless of size—need to prepare to notify all current employees, part-time and full-time, of the availability of health insurance coverage from the new health insurance exchanges (the “Marketplace”) created by the Affordable Care Act (“ACA”). The Marketplace will offer individuals an opportunity to compare and arrange to purchase health insurance policies. Marketplace health insurance options offer alternatives to employer-sponsored group health plans to employees.
September 3, 2013
Health care real estate leasing transactions offer a variety of unique issues that differ from the negotiation of the typical lease arrangement.
September 2013
The much-anticipated Paso Fino Horse Association's (PFHA) 41st annual Paso Fino Grand National Championship Show and Expo will be held at the KY Horse Park September 29 - October 5, 2013 for the second year in a row. 2,000-plus Paso Fino Grand National spectators and exhibitors will be on site representing seven countries! The best of the best will be competing, having had to qualify throughout the year. The Pasos are a sight to behold with their long flowing manes, animated style and beautiful costumes.
September 2013
The Jefferson Courtroom Upgrade Project (JCUP) has completed the installation of the all-digital multi-input, triple-screen output audio video system in Divisions 1 and 8 of Jefferson Circuit Court.
August 29, 2013
At its annual meeting, the American Bar Association’s House of Delegates adopted Resolution 107c, which addresses reliance on the doctrine of forum non conveniens to refuse to enforce an arbitral award in the United States.
August 29, 2013
Brazil has passed a new Anti-Bribery Bill, which imposes civil and administrative liability on companies found to have engaged in corrupt practices while transacting business in Brazil or with Brazilian entities. The law will go into effect early in 2014.
August 26, 2013
The federal government is using every tool available to fight health care fraud and recover overpayments from health care providers. According to the United States Department of Health and Human Services and Department of Justice’s health care fraud and abuse control program annual report for fiscal year 2012, the federal government recovered over $3 billion in health care fraud judgments and settlements.
August 23, 2013
It is common for banks to become the owners of properties that once secured their loans by virtue of making credit bids at foreclosure sales. These properties are commonly referred to as “OREO” (Other Real Estate Owned) in the banking industry. Dealing with OREO can be challenging, time-consuming and expensive for bankers who would rather spend their time making loans, opening new deposit accounts and otherwise servicing customers. This is the first article in a two-part series designed to provide practical suggestions for dealing with OREO properties. This first article will focus on pre-sale considerations. The second article, which will be published in the fall issue of the West Virginia Banker magazine, will address post-sale issues that may arise after the sale is completed.
August 16, 2013
On Wednesday, August 14, 2013, the U.S. Department of Health and Human Services (HHS), announced that it had reached a $1,215,780 settlement with Affinity Health Plan, Inc., a not-for-profit managed care plan serving the New York metropolitan area, relating to potential HIPAA violations stemming from a breach of PHI stored on photocopier hard drives.
August 15, 2013
Mine operators have long been frustrated by being held strictly liable for MSHA civil penalty assessments where an employee’s misconduct or negligence was the direct cause of the violation of MSHA regulations. While the Mine Act does provide for the strict liability of mine operators for safety violations, there are instances where coal mine operators can protect themselves from liability through the diligent and consistent enforcement of company safety policies, namely where they involve the use of seatbelts and fall protection. Mine operators are often faced with potential liability in MSHA and civil proceedings due to accidents involving mobile surface equipment or catastrophic falls from elevated positions. Mine operators can take affirmative steps to protect employees from such accidents and limit potential liability.
August 14, 2013
Historically, wagering on horse racing has been preferred by state governments over other forms of gambling, such as lotteries, wagering on sports or casino gaming. In the late 1930s, when most other gambling fell out of favor due to corruption and organized crime, horse racing and wagering were seen as bringing entertainment to the masses during difficult economic times. Beginning with the historic and storied racing career of a small poorly bred horse named Seabiscuit, horse racing enjoyed growth in popularity and handle for several decades.
August 13, 2013
The Consumer Financial Protection Bureau (CFPB) issued new Mortgage Servicing Rules that will take effect on January 10, 2014. These rules apply to any “closed-end consumer credit transaction secured by a dwelling.” The new Mortgage Servicing Rules impose new or modified rules in nine major areas affecting mortgage servicing.
August 9, 2013
Investment managers may be well served to file their upcoming Form 13F reports (due next Wednesday, August 14th) early this quarter.  That is because a new EDGAR filing format went into effect on May 20, 2013, pursuant to which all Form 13F filing must now be made in XML format rather than text-based ASCII format.
August 2, 2013
Sequestration is forcing housing authorities across the nation to freeze waiting lists, raise rents and drop applicants from voucher programs. It will be hugely disruptive to the communities involved. This column by Mary Groves appeared in the Aug. 2 issue of the Denver Business Journal.
August 2013
Right to Work laws prohibit agreements between labor unions and employers that mandate an employee’s membership in a union, or the payment of union dues or fees as a condition of employment. These laws allow the government to regulate contractual agreements between employers and labor unions that prevent them from excluding nonunion workers or requiring all employees to pay a fee to the union, even if an employee chooses not to join the union.
July 31, 2013
The gambling sector in Hungary may look back on this summer as one that opened up new opportunities after two somewhat unexpected changes were introduced last month. The Hungarian Parliament finally adopted the brand new remote gambling regulation following a long period of inaction on this matter in recent years, and the government indicated it will issue 10 new casino concessions in the near future.
July 29, 2013
The Patient-Centered Outcomes Research Trust Fund fee is a fee imposed on insurance carriers of fully-insured group health plans and on plan sponsors of self-insured group health plans to fund the Patient-Centered Outcomes Research Institute (“PCORI”). The institute will assist, through research, patients, clinicians, purchasers and policy-makers, in making informed health decisions by advancing the quality and relevance of evidence-based medicine.
July 29, 2013
Nearly three years ago, the Sierra Club commenced an administrative appeal of a WV/NPDES water discharge permit issued by the West Virginia Department of Environmental Protection (“WVDEP”) for a mining operation in Monongalia County, West Virginia. The operator needed the permit to move into the next phase of mining at the New Hill mine, and allow its workforce to keep their jobs.
July 26, 2013
It may be hard to believe, but back-to-school time is quickly approaching. This weekend, I will be volunteering at the Communities in Schools of Greenbrier County “Stuff the Bus” school supply drive. Years prior to this, I’ve spent several hours, along with others in my office, stuffing backpacks at Scott’s Run Settlement House in coordination with United Way. It reminds me that a few years ago a “hot topic” related to school systems (or individual schools) dealt with sending parents a “back-to-school supply list”. As we approach the 2013-14 school year, I thought now might be a good time to remind county school systems of the legal issues relating to mandatory back-to-school supply lists.
July 17, 2013
At the end of February 2013, the Allegheny County solicitor mailed 2,800 letters to real estate parcels owned by nonprofit organizations designated as “institutions of purely public charity.” The letters required a response within 60 days that would demonstrate how the organization satisfied the HUP test (Hospital Utilization Project v. Commonwealth, 507 Pa. 1 (1985)) and would therefore be entitled to exemption from real estate tax. If no timely response was received, the organization risked losing its exemption for its parcels.
July 16, 2013
In early July, the SEC commissioners voted to eliminate a long-standing rule that prohibited general solicitation of investors and thereby will allow business entities greater leeway to advertise private offerings. The SEC’s ban on general solicitation for private securities offerings has been in place for more than 80 years and has served to prohibit essentially all public advertising of private investment offerings. The SEC’s elimination of this rule will provide an opportunity for businesses that raise money through private offerings to reach more potential investors. Since nearly $1 trillion is raised annually through private offerings, this is a significant rule change. The rule, however, does come with significant restrictions that make compliance with securities regulations paramount for private offerors of securities.
July 16, 2013
Leasing a horse can be a great way to experience “owning” a horse without the full investment of purchasing a horse and taking on responsibility for the long-term costs of horse ownership. For the owner, or “lessor,” leasing a horse to a “lessee” can also have benefits, such as reducing the costs associated with owning the horse, or keeping the horse fit and in training if the lessor doesn’t currently have the time to ride. However, with these rewards come certain risks that are best addressed in a signed lease agreement. The agreement does not need to be a lengthy document, but a well-drafted lease agreement that clearly sets out the responsibilities of the lessor and lessee can protect both parties and prevent confusion during the lease period.
July 15, 2013
This time of the year county board of education personnel offices are busy filling both professional and service personnel positions for the fast approaching 2013-14 school year. And, at the same time the personnel offices are becoming familiar with West Virginia Department of Education Policy 5000 as it relates to professional positions. Many of the professional positions for the upcoming 2013-14 school year will be filled by the transferring of regular employees. The purpose of this month’s education alert is to remind county boards of education of the “stay put” provisions found in W. Va. Code § 18A-4-7a. Recall that beginning in the 2012-13 school year the “stay put” provisions changes from five (5) days to (20) days.
July 15, 2013
The Securities and Exchange Commission (SEC) staff appears to be focusing on the broker-dealer registration issue in the context of private securities marketing activities. Recent SEC enforcement actions demonstrate there are serious consequences for acting as an unregistered broker, even where there are no allegations of fraud. This regulatory focus will likely continue, and could increase, with the use of general solicitation and general advertising in Rule 506 private offerings permitted by the Jumpstart Our Business Startups (JOBS) Act.
July 9, 2013
Laura Zubulake was a high-ranking sales executive with UBS Warburg working on a maledominated securities desk. In April of 2001, this department moved to its New York City location. Zubulake was assigned a work-station with other female assistants instead of being seated with other male senior sales executives. Zubulake filed a “Charge of Discrimination” with the Equal Employment Opportunity Commission on August 16, 2001. She was terminated by UBS on October 9, 2001. The EEOC issued a right to sue notice, and thereafter, Zubulake asserted claims for sexual discrimination and retaliation against UBS in the United States District Court for the Southern District of New York in Manhattan.
July 8, 2013
Adding to last year’s EEOC criminal background check guidance, Minnesota’s recent background check restrictions, and some other federal precedents, in Waldon v. Cincinnati Public Schools, the U.S. District Court for the Southern District of Ohio recently denied a motion to dismiss in a case where the employer terminated employees with certain criminal convictions pursuant to state law. The employer defended on the grounds that state law required it to terminate the employees.
July 8, 2013
On March 24, 2010, the United States Department of Labor, Wage & Hour Division (“WHD”) issued an “Administrator’s Interpretation” declaring that employees who perform the typical job duties of a mortgage loan officer do not qualify for the administrative exemption under the Fair Labor Standards Act (“FLSA”).
July 5, 2013
The Federal Government is using every tool available to fight health care fraud and recover overpayments from health care providers. According to the United States Department of Health and Human Services and Department of Justice Health Care Fraud and Abuse Control Program Annual Report for FY 2012, the Federal Government recovered over $3 Billion in health care fraud judgments and settlements. In its Semi-Annual Report to Congress for the first half of FY 2013, the Office of Inspector General expects to recover over $3.8 Billion in audit receivables and investigation receivables from health care providers. As a result of the Federal Government’s aggressive auditing and overpayment recovery, and in order to ensure compliance with Federal program billing payment requirements, including Medicare and Medicaid, health care providers have begun performing self-audits on a sample of claims to be submitted.
July 5, 2013
Last December, Ohio Governor John Kaisch signed into law legislation that reforms and updates the manner in which Ohio taxes financial institutions. The law will create a new Financial Institutions Tax (FIT), which will replace the longstanding corporation franchise tax (CFT), and repeal the tax on dealers in intangibles when it takes effect on January 1, 2014. Accordingly, financial institutions will not be required to file the CFT for years subsequent to 2013.
July 5, 2013
July 5, 2013
The Assistant Secretary for Tax Policy at the Department of Treasury (Treasury) released an announcement July 2nd indicating that the Obama Administration has decided to postpone the reporting requirements for employers in order to allow the Treasury more time to consider and simplify the requirements in a way that is consistent with the Affordable Care Act (ACA). Along with this pronouncement, the Administration has decided to delay until 2015 the imposition of employer “shared responsibility” payments under Code section 4980H.
July 1, 2013
July is truly action packed at the Kentucky Horse Park with international competition in several riding disciplines, celebrity team penning action for charity and laughs, as well as many events for children, including Hats Off Day (free admission to the Park for all kinds of great family activities) and BreyerFest, a horse-crazy kid's dream! Collectors of model horses and general horse enthusiasts have unlimited activities for three days in a row This in addition to all of the great family activities available every day at the Horse Park.
July 1, 2013
On June 25, 2013, along with other members of the West Virginia Chamber of Commerce’s Environmental Committee, we met in Philadelphia with EPA Region III Regional Administrator Shawn M. Garvin and about a dozen members of his senior staff. The meeting was the latest in an annual series of Chamber “Fly-Ins” to Philadelphia, started many years ago for the purpose of allowing West Virginia business leaders to share their views about key environmental issues and ask questions about EPA’s approach to oversight (or direct implementation) of the various federal regulatory programs. The Chamber had shared in advance a detailed (seven-page) agenda of questions to guide the discussions.
July 1, 2013
The Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and Sierra Club have filed five (5) lawsuits in the last two months in the U.S. District Court for the Southern District of West Virginia, alleging that owners of former coal mine sites are violating the Clean Water Act, 33 U.S.C. § 1251 et seq. (“CWA”) by “discharging” pollutants from unpermitted point sources. In each case, the plaintiffs concede that the property owners were not actively involved in conducting the coal mining operations that resulted in runoff being contaminated with selenium. However, they assert the landowners should be held responsible under the CWA because the mining companies are no longer present and the permits that authorized those operations have been released.
July 2013
This chapter is intended to be a practical and useful overview of the essential principles of casualty and property insurance in Kentucky. The types of coverage most applicable to real estate practice – and thus the types which are the focus of this chapter – are casualty and property insurance.
July 1, 2013
A recently formed women's racing syndicate and social club, with the goal of promoting horse racing in a fun and positive way. Anna Seitz Ciannello was inspired to start this group after she took a work trip for Fasig-Tipton to Australia and saw how many great syndicates exist there, and how many women are involved in racing.
June 28, 2013
We often receive questions related to insurance coverage for volunteer coaches through the Boards of Education policies with the Board of Risk and Insurance Management ("BRIM"). West Virginia Ethics Commission ("Ethics Commission") Advisory Opinion 2005-03 (April 7, 2005), regarding a Board of Education member serving as an athletic coach, relied on a fact that the Board member was paid a nominal salary of $1.00 per year for liability insurance coverage for the actions of the coach.
June 28, 2013
An Illinois court recently found that a contest sponsor’s publication of images violated the Illinois Right of Publicity Act when it published a photo of an entrant on a media kit used to generate advertising revenue for its monthly publication.
June 27, 2013
On Monday, June 24, 2013, the Supreme Court issued two 5-4 rulings in important cases affecting the employment world, University of Texas Southwestern Medical Center v. Nassar and Vance v. Ball State University. By making it harder for plaintiffs to establish their claims and by providing judges with greater opportunities to dispose of cases before making it to the jury, the decisions in Nassar and Vance will undoubtedly result in reduced litigation costs to employers and will limit the pressure to settle otherwise frivolous claims.
June 13, 2013
In product liability litigation, the determinants of causation between an agent and a disease are frequently a critical issue. In 1965 Sir Austin Bradford Hill, a British epidemiologist and statistician, delivered a speech to the Royal Society of Medicine in which he presented a list of what are often referred to as the Bradford Hill criteria. With increasing frequency, state and federal courts mention these criteria when discussing the admissibility of epidemiological evidence, however, they provide limited analysis of them. In view of this limited analysis by counsel and the courts, it seems appropriate to explore the significance of the Bradford Hill criteria—if any—in consideration of the admissibility of epidemiological evidence on the issue of causation.
June 11, 2013
On June 4, 2013, the Ohio Supreme Court issued a decision limiting the circumstances under which a psychological condition can be recognized in a workers’ compensation claim. The Court’s decision, Armstrong v. John R. Jurgensen Co., 2013-Ohio-2237, clarified that an injured worker must not only sustain a physical injury for a related psychological condition to be compensable, but that in fact the psychological condition must be caused by the physical injury itself.
June 9, 2013
The new Energy Committee of the Defense Trial Counsel of West Virginia hopes to bring together practitioners who are involved in defense litigation involving energy issues. This potentially encompasses administrative, civil, and criminal cases touching on a number of different areas, in both state and federal courts within West Virginia. Indeed, in light of the importance of the energy industry to our State, it is difficult to find many significant court decisions that do not in some manner address or affect some aspect of energy development. Moreover, the environmental and other regulatory programs that apply to energy producers and related entities are constantly evolving, and even those who practice in the area on a regular basis find it difficult to keep abreast of all of the new or amended statutes and rules, many of which are driven by changes in underlying federal programs.
June 7, 2013
The face of Lexington Polo has been rebranded as the Club undertakes new leadership with Chet Lott as President, James Miller as Vice-President, Callan Strouss as Secretary and Billy Hilliard as Treasurer. Original Makers Club ("OMC") will partner with Lexington Polo to add a certain glamour and cultural flare to Lexington Polo social events, tailgates and tournaments.
June 5, 2013
In an effort to improve patient care, the Centers for Medicare and Medicaid Services (“CMS”) established electronic health record (“EHR”) Incentive Programs, which provide financial incentives for the “meaningful use” of certified EHR technology.
June 3, 2013
The West Virginia Department of Environmental Protection (WVDEP) is in the midst of finalizing changes to general permits and rules in three (3) different areas pertaining to natural gas production and processing. These new requirements add to the growing list of steps that must be followed by those who plan to explore for, produce, process and/or transport natural gas in West Virginia, especially for operations involving production from the Marcellus Shale through horizontal wells using hydraulic fracturing.
June 3, 2013
June 2013
If you are a copyright owner of books, music, photographs, and/or other copyrightable works, you may sell copies of those works in the U.S. for a "U.S. price." If you sell copies overseas, you may also establish a "foreign price." While the foreign price is often lower than the U.S. retail price, the consensus among scholars has been that foreign entrepreneurs cannot purchase your foreign copies and resell those in the U.S. for profit because the "first sale doctrine" does not apply to those copies. In a recent decision, the U.S. Supreme Court disagrees.
June 2013
A joint-defense agreement is a useful tool, allowing counsel of co-defendants to share information and present a coordinated defense. However, these agreements must be carefully drafted to ensure that each individual client is protected. In particular, a provision that waives the right of members of the joint defense to move to disqualify lawyers must be clear and precise.
June 2013
The vast majority of cases in state and federal courts are civil suits; in fact, they are 75 percent of federal cases. They, therefore, involve many more Americans than our criminal system. It then seems odd that, far and away, most public opinion polling on the courts relates to the criminal system.
May 23, 2013
The Health Insurance Portability and Accountability Act (“HIPAA”) requires health care providers to inform patients of the providers’ legal duties and the patients’ rights regarding protected health information (“PHI”). Providers do so in their Notice of Privacy Practices. The recent HIPAA omnibus rule promulgated by the United States Department of Health and Human Services alters and emphasizes obligations related to Notice of Privacy Practices. Along with this new rule, Medicare requirements have changed and now make physicians retain ordering documentation for at least seven years from the date of service.
May 21, 2013
May 21, 2013
It is probably fair to say most registered investment advisers, at least those below a certain size, did not pay a great deal of attention to the anti-identity theft, or “red flag” rules jointly adopted by the Federal Trade Commission and the various federal banking agencies in 2007 as required by Congress in its 2003 amendments to the Fair Credit Reporting Act (“FCRA”). And even those who did notice when the red flag rules were adopted could be forgiven for concluding those rules did not apply to them – after all, the red flag rules were aimed at “financial institutions” which “hold” certain “covered accounts” for their clients, and most RIAs diligently avoid holding any sort of custodial account in the first place. Plus, the SEC and state securities commissions had no role in enforcing the red flag rules anyway.
May 21, 2013
The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) protects all "individually identifiable health information," commonly referred to as protected health information (“PHI”), held or transmitted by a covered entity or its business associates. A “Business Associate” is any party that may be required to use, disclose or create PHI from or on behalf of a Covered Entity. Although most landlord and tenant relationships do not require business associate agreements, health care providers must ensure that their leases contain language to address the confidentiality and restricted access of all PHI.
May 20, 2013
As the end of the 2012-2013 school year comes to an end in West Virginia, with it comes the planning of high school graduation ceremonies. Over the years, the issue of prayer at graduation ceremonies has been a hot topic nationally, all because of the Establishment Clause of the First Amendment. The legal landscape on this issue is anything but clear.
May 20, 2013
May 17, 2013
MHC Kenworth ruling strengthens enforcement of arbitration provisions, but are they good for your business? Although public policy generally favors the enforcement of arbitration agreements, Kentucky courts historically have faced unique jurisdictional limitations on their ability to enforce such agreements. Kentucky statutory law prevents state courts from enforcing arbitration agreements unless they specifically provide that the arbitration will occur in Kentucky. This limitation on Kentucky courts has presented a roadblock for companies attempting to compel the arbitration of disputes and required more specificity in drafting agreements to arbitrate.
May 16, 2013
By letter dated April 30, 2013, EPA Acting Administrator Bob Perciasepe denied a petition filed by the Sierra Club and other groups, seeking to have the agency issue a determination pursuant to section 111 of the federal Clean Air Act, 42 U.S.C. §7411(b), finding that air pollution emissions from coal mines “may reasonably be anticipated to endanger public health and welfare.” Had the EPA made such a finding, it would have then been obligated to issue New Source Performance Standards (“NSPS”) for the pollutants addressed in the determination, initially applicable to new or modified coal mines, and potentially applicable to existing mines after further rulemaking. 42 U.S.C. §§7411(b)(1)(B), (d).
May 15, 2013
May 13, 2013
Have you received an email from the Department of Labor recently? If not, you may. The Department has recently begun a program to identify whether employee “welfare benefit plans” (typically, group health plans) have filed a Form 5500 Annual Return/Report as required by Title I of the Employee Retirement Income Security Act of 1974 (ERISA). This program includes emails to thousands of plan sponsors.
May 8, 2013
On May 7, 2013 the D.C. Circuit Court of Appeals vacated the controversial “mandatory posting” rule implemented by the National Labor Relations Board on August 30, 2011. National Association of Manufacturers, et al. v. NLRB, No. 12-5068 (D.C. Cir. 2013). The rule, titled the “Notification of Employee Rights under the National Labor Relations Act” would require every employer under the jurisdiction of the NLRB to post a notice informing employees of their rights to organize a union without retaliation. The rule also created an unfair labor practice to permit the NLRB to punish employers who failed to post the notice, created a presumption that those employers were possessed of an anti-union animus, and created a new statute of limitations permitting the NLRB to bring action against those employers more than six months after they committed the violation as an exception to the National Labor Relations Act’s standard limitations period contained in Section 10(b) of the statute.
May 3, 2013
Governor Kasich has proposed what could result in a refund of a full-year of premiums to Ohio employers over the next two years. Specifically, he has proposed a $1 billion rebate for the policy year beginning on July 1, 2011 and ending on June 30, 2012 for those employers who paid premiums during the period, who are in good standing with the Bureau, and who do not owe any money. Of this, $113 million would go to cash-strapped local governments.
May 2, 2013
For decades, U.S. immigration officers issued a Form I-94 Arrival/Departure Record to almost all foreign nationals who lawfully entered the United States as nonimmigrants. The I-94 is a paper form that a nonimmigrant receives at the time of entry into the U.S. Its purpose is to record the nonimmigrant’s lawful admission to the U.S., including the date and place of entry, the visa class or status in which the person is admitted, and the length of time that the nonimmigrant is permitted to remain in the U.S. An example of an I-94 card is reproduced here.
May 1, 2013
Boards of education often wish to gather together to “touch base” with members of their community or merely wish to discuss and work through issues they are facing, without any intention to take official board action or have a formal board meeting. Such sessions are certainly useful and have the potential to be very productive, but, as we all know, the West Virginia Open Governmental Proceedings Act places many restrictions on how and when board members may convene as a group, what may take place, and what, if any, public notice is required.
May 1, 2013
The subject of open source licensing has created a level of uncertainty amongst companies, especially with General Public License (GPL) or GPL derivatives when it comes to intellectual property restrictions on coded data. The use of communication mechanisms known as sockets, which serve as a “rest stop” between client programs and server programs, has introduced several new possibilities to deterring infringement claims and disclosure requirements.
May 1, 2013
As the world-class facilities of the Kentucky Horse Park evolve and expand, a growing number of elite riders and trainers are making Lexington (or surrounding counties) their home. The Park is not only "heaven for horse lovers" but a major economic driver in our region. Since hosting the Alltech World Equestrian Games in 2010, the Horse Park has increasingly garnered the attention of professional and amateur riders alike and is both a catalyst for, and a beneficiary of, international level talent who choose to locate, begin professional businesses, and raise their families in the beautiful bluegrass.
May 1, 2013
When Laura D’Angelo was growing up, she had a big poster on her bedroom wall of a beautiful Lexington, Ky., horse farm, complete with white fencing and horses in a field. Not unusual for someone who loves horses, right? But D’Angelo was nowhere near the Horse Capital of the World. She lived in a small community called Meaford, north of Toronto in Ontario, Canada.
April 30, 2013
In recent years, the environmental phenomenon known as vapor intrusion has sparked new fears of illness and environmental liability. Vapor intrusion occurs when pollutants in soil and groundwater migrate toward buildings. These chemicals then seep through cracks in foundations and walls and enter interior spaces as vapor. You could think of the threat from vapor intrusion as similar to radon, except that vapor intrusion is a man-made problem.
April 30, 2013
On April 23, 2013, the Supreme Court of Ohio reversed the decision of the Eleventh District Court of Appeals and applied Ohio Revised Code 2317.43, commonly referred to as the Apology Statute, to exclude a physician’s post procedure statements from evidence in a medical malpractice lawsuit. The Court’s slip opinion can be accessed here: Johnson v. Smith.
April 29, 2013
In a surprising reversal, on April 23, 2013, the U.S. Court of Appeals for the District of Columbia Circuit overturned a lower court order issued on March 23, 2012, in the case of Mingo Logan Coal Company v. U.S. Envtl. Prot. Agency, Civil Action No. 12-5150; 2013 U.S. App. LEXIS 8121 (D.C. Cir. April 23, 2013). In the lower court, District Judge Amy Berman Jackson ruled that the U. S. Environmental Protection Agency (“EPA”) did not have the power to retroactively “veto” a Clean Water Act § 404 “dredge and fill” permit after it was issued by the U.S. Army Corps of Engineers to Mingo Logan Coal Company for its Spruce No. 1 coal mining operation in Logan County, West Virginia. The appeals court decision reverses that ruling and reinstates EPA’s veto subject to Mingo Logan’s opportunity to pursue a challenge to the stated grounds for EPA’s decision.
April 26, 2013
Much attention has been paid to the Marketplace Fairness Act currently under consideration in Congress. Understandably, that coverage has focused on whether the bill, which would permit states to require out-of-state businesses to collect and remit sales taxes on goods sold over the Internet, will gather enough political support to become law. Little attention has been paid to the more interesting legal question—would the law be constitutional? Recent decisions from the federal courts suggest the question is open to serious debate.
April 26, 2013
The Centers for Medicare and Medicaid Services (“CMS”) released an important instruction for physicians, non-physician practitioners (“NPPs”) and providers who bill for services provided in skilled nursing facilities (SNFs) and nursing facilities (NFs). In its instruction, CMS discusses physician delegation of tasks in SNFs and NFs to NPPs, including nurse practitioners, physician assistants and clinical nurse specialists, which can be found in Section 3108 of the Affordable Care Act. Specifically, CMS clarifies the regulatory differences of physician delegation of tasks in SNFs and NFs, and outlines the tasks which can be delegated to NPPs in SNFs and NFs. CMS warns that, effective May 1, 2013, improper delegation of tasks to NPPs and improper billing of those tasks will result in denial of claims. As this new phase of denial review is implemented, it is important for physicians, NPPs and providers who bill for services relating to beneficiaries in SNFs and NFs to understand the requirements surrounding physician delegation.
April 25, 2013
In Forrest Construction, Inc. v. The Cincinnati Insurance Co., No. 11-6262, 2013 U.S. App. LEXIS 722 (6th Cir.), the United States Court of Appeals for the Sixth Circuit held that an insurer breached its policy with an insured contractor when it declined to defend the contractor from a counterclaim for defective workmanship asserted by the contractor’s former customer. The case arose out of the contractor’s construction of a house for the customer. The contractor filed suit against the customer, following a dispute over the amount owed for the house. The customer counterclaimed, alleging there were defects in the workmanship of the house. In particular, the customer alleged there was a substantial amount of cracking in the foundation, which caused “a potentially deadly collapse of the residence.” Though the customer did not specifically allege that any particular subcontractors were responsible for the defective workmanship, the counterclaim broadly alleged that the contractor “recklessly performed, or caused to be performed” the defective work.
April 25, 2013
On April 5, 2013 the U.S. Court of Appeals for the 11th Circuit issued its opinion in Landolfi v. Melbourne , holding that although an employee’s military service motivated the employer’s promotion decisions, his Uniformed Service Employment and Re-employment Rights Act (“USERRA”) discrimination claims must fail because the employer also considered legitimate factors in making the decisions.
April 23, 2013
For years, most Americans have been aware of an apparent sales tax loophole. If a consumer buys a television set at a brick and mortar store, sales tax will be due on the purchase. In contrast, unless the internet retailer is located in the same state as the consumer, no sales tax is paid when the same TV is bought online. While consumers have enjoyed this apparent loophole (it’s not a real loophole, as discussed below), non-online retailers have seen a significant loss in sales, and states and municipalities have lost out on billions of dollars in tax revenue.
April 19, 2013
January, 2013, was a watershed month for mortgage standards after the Consumer Financial Protection Bureau released the long-awaited final rules on ability to repay, qualified mortgages, mortgage servicing, and appraisal requirements. Each of these rules promises to keep compliance gurus busy throughout this year and into 2014. January also heralded another Dodd-Frank final rule of great interest to senior management, boards of directors, and certainly to the frontline, revenue producing, mortgage loan personnel – the mortgage loan originator compensation requirements.
April 18, 2013
While the Kentucky legislature continues to debate the issue of expanded gaming without progress, two Kentucky horse racing tracks – Kentucky Downs and Ellis Park – offer their patrons “Instant Racing”, or wagering on historical horse races. The tracks’ Instant Racing software is housed in a slot machine-like terminal, and the bettor wagers on historical horse races provided with limited past performance information which does not identify the date, the horse or the track. After placing a wager, the bettor is given the option of watching the race or immediately viewing the results and moving quickly to the next wager. The revenue generated by Instant Racing is substantial – from September 2011 to December 31, 2012 approximately $228 million has been wagered through the machines – but the legality of the game in Kentucky remains in question.
April 17, 2013
Obviously many county school systems are beginning the process of educating themselves on the changes found in Senate Bill 359. Some of the major changes that will be new for all are found in West Virginia Code 18A-4-7a, relating to the hiring of professional employees (we no longer get to say “1st Set of Factors and 2nd Set of Factors”). However, the purpose of this educational alert relates to statutory changes that impact the termination of employees, both service and professional.
April 16, 2013
April 11, 2013
On April 2, 2013, the Securities & Exchange Commission issued a Report of Investigation clarifying that a public company may use social media outlets such as Facebook and Twitter to disseminate material information to investors while still complying with its Regulation FD requirements. In the Report and accompanying press release, the Commission explained that a company must take reasonable steps to alert investors and the market as to which social media outlets will be used to disseminate such information.
April 8, 2013
An issue that arises every summer for counties relates to summer employment and summer seniority for service personnel. W. Va. Code 18-5-39(f) addresses the establishment of summer school programs.
Spring 2013
March 28, 2013
Judge McMonagle has awarded damages in the San Allen case. The Judge accepted the plaintiffs’ expert on damages. He awarded $859,440,258.79 after a hearing on the issue of the amount of class action damages for employers who were not in a group rating plan from 2001 to 2009.
March 28, 2013
Individuals with concerns about preserving their assets from claims of possible future creditors no longer need to move their assets to Delaware, Alaska or offshore in order to protect them. With the enactment of the Ohio Asset Management Modernization Act of 2012 (“AMMA”), Ohio trust law, property law and debtor-creditor laws have been amended to move Ohio to the forefront of asset protection jurisdictions.
March 19, 2013
In the wake of the mass shootings that continue around the country, the President, some members of Congress, state and local officials and many advocacy groups are pursuing an aggressive agenda to increase safety measures and controls for guns and ammunition. Regardless of what action, if any, our elected officials take, employers have a duty to protect their employees, clients and customers from harm, and they can be held liable for failing to do so. Employers must evaluate a variety of considerations with regard to workplace violence, including employee rights under state gun laws, establishing a workplace violence policy, conducting background checks, whether and how to institute an Employee Assistance Program (EAP), employee training to recognize and report threats, and avoidance of discrimination claims.
March 19, 2013
Bronchiolitis obliterans, once viewed a problem unique to the microwave popcorn and flavoring industries, is quickly expanding to become a widespread phenomena in many workplaces. Researchers continue to expand the list of industries impacted by bronchiolitis obliterans while at the same time loosening the diagnostic requirements for this serious disease. As a result, manufacturers should be prepared to face litigation arising from claims of bronchiolitis obliterans.
March 12, 2013
On February 13, CGS Administrators, the Parts A and B Medicare Administrative Contractor for Kentucky and Ohio, relayed instructions to Medicare hospitals paid under the Inpatient Prospective Payment System from the Centers for Medicare and Medicaid Services regarding recent denied inpatient claims that can now be processed on an outpatient or observation basis. CGS' notice results from recent federal Administrative Law Judge (ALJ) decisions affecting the final payment for inpatient Medicare claims denied as not reasonable or necessary.
March 8, 2013
Today, The Department of Homeland Security (DHS) released its new I-9 (Employment Eligibility Verification) form that all employers are required to use to verify the identity and employment authorization eligibility of their employees.
March 6, 2013
Beginning in 2014, most Americans will be required to have health insurance. That's right. The Patient Protection and Affordable Care Act (ACA) will require individuals to purchase health insurance or pay a penalty. Individual states like West Virginia are setting up insurance exchanges to allow people to purchase health insurance at a lower cost.
March 5, 2013
The U.S. District Court for the Northern District of California recently addressed whether a “patent aggregator” (a.k.a. “anti-troll”), which is an organization formed by operating companies to protect against “non-practicing entities” (NPEs, a.k.a. “patent trolls”), violated antitrust laws. Cascades Computer Innovation LLC (“Cascades”), an alleged troll, sued RPX Corp. (“RPX”), a patent aggregator, and several of RPX’s member companies, for violations of federal and state antitrust laws. The court subsequently granted the defendants’ motions to dismiss—but also granted Cascades leave to amend. Patent aggregators: Be warned that you may face antitrust claims in future disputes with patent trolls.
March 4, 2013
In a decision favorable to Ohio employers, the Ohio Supreme Court recently clarified the circumstances under which an employer can be found to have committed an “employment intentional tort.” The Court’s decision, in Hewitt v. L.E. Myers Co., 2012-Ohio-5317, gives valuable insight into the circumstances under which an employer can be sued by an employee outside of the normal constraints of the Ohio workers’ compensation system.
February 26, 2013
The State of Alabama filed suit on February 19, 2012, attempting to shut down four casinos it contends are illegal. Three Indian gambling centers and VictoryLand – one of the state’s largest racetracks and casinos which has been a target numerous times over the past few years – are at the center of the State’s current lawsuit.
February 20, 2013
In the midst of the current trend of physician-hospital alignment, and ever-growing numbers of physicians being employed by hospital and health systems, the Ohio General Assembly has passed a new law which changes existing Ohio law on the mechanics and scope of patient notification of a physician’s departure from a practice.
February 20, 2013
Some of the biggest names in the legal profession wrestled with points of constitutional law on February 14 in NCAA v. Christie, the case that some have called “the fight for the future of American sports gambling.”
February 15, 2013
More than 35 years after becoming law, the Criminal Division of the United States Department of Justice and the Enforcement Division of the Securities and Exchange Commission released their long-awaited guidance on the application and enforcement of the U.S. Foreign Corrupt Practices Act in late 2012. The 120 page document, entitled A Resource Guide to the U. S. Foreign Corrupt Practices Act (the “Guide”), is a useful reference for companies and individuals, who are competing in the international workplace or considering doing so. That being said, it is important to note that the guidance is non-binding and “does not in any way limit the enforcement intentions or litigating positions.”
February 12, 2013
On February 7, New Jersey Governor Chris Christie issued a conditional veto of online gaming legislation that informed state lawmakers that he would sign into law a bill permitting broad online gaming as soon as lawmakers bumped the tax rate from 10 percent to 15 percent and inserted a sunset provision that will require New Jersey to revisit the law in 10 years. State lawmakers immediately indicated in the media that they would do so as fast as possible.
February 12, 2013
Two recent news items shine a spotlight on MSHA, its inspection corps, and several publicly acknowledged inspection failures. On February 5, 2013, the W.Va. Supreme Court published a decision that, for purposes of the Federal Tort Claims Act (“FTCA”), found that the United States could be liable for the wrongful death of two coal miners resulting from the admittedly negligent inspections performed by federal mine inspectors. Bragg et al. v. U.S., Case No. 12-0850, __ W.Va. __, __ S.E.2d __ (W.Va. February 5, 2013). Two days later, it was announced that an MSHA inspector was sentenced to two years probation for falsely claiming that he had inspected six mining facilities in Tennessee from August 2011 through October 2011.
February 12, 2013
More than 43,000 employees will take advantage of new benefits under the Family and Medical Leave Act (“FMLA”), according to the U.S. Department of Labor. In the National Defense Authorization Act for Fiscal Year 2010, Congress expanded the scope of the FMLA to benefit families of service members and veterans. In separate legislation, Congress expanded FMLA benefits for airline crew members. Last week, the Department of Labor issued regulations that will implement the new benefits. The Department’s action came on the 20th anniversary of the FMLA’s enactment. The regulations go into effect on March 8, 2013.
February 8, 2013
A recent decision by Kentucky’s highest court has left the law governing certain negligence cases in a state of transition. It is common for plaintiffs to assert a claim for emotional distress, such as anxiety or depression, to maximize their damages. Until very recently, Kentucky courts applied a strict rule known as the “impact rule” for such cases. Under this rule, an individual claiming emotional damages resulting from negligence could recover such damages only if the individual could prove that he was somehow physically contacted – essentially, no contact equaled no recovery. The impact rule was not perfect and certainly had its critics. However, the rule served a useful purpose to defendants, who could rely on the impact rule as a defense and avoid exposure and expense by disposing of emotional distress claims, which lacked physical impact, before proceeding far into litigation.
February 7, 2013
After the OIG identified a high error rate for Place of Service (“POS”) modifiers over several years, the Centers for Medicare and Medicaid (“CMS”) issued a billing and coding revision (CR 7631) to instruct any physician, provider or supplier billing Medicare contractors for services paid for under the Medicare Physician Fee Schedule (“MPFS”) on the proper use of POS modifiers for the professional component or the technical component of diagnostic tests.
February 6, 2013
The Federal Trade Commission (“FTC”) recently announced the 2013 filing thresholds under the Hart-Scott-Rodino Act (“HSR”). The thresholds determine whether parties involved in mergers, acquisitions, transfers of voting securities or unincorporated interests, or other transactions, such as exclusive licensing deals or joint ventures, must notify the FTC and the Department of Justice of the proposed transaction. Deals that meet the HSR filing thresholds must be reported (absent any applicable exemptions) to the agencies, and the parties must comply with a mandatory waiting period before consummating the transaction to allow the agencies to determine whether the transaction raises potential antitrust/competitive concerns.
February 6, 2013
On February 8, 2013, the final Physician Payment Sunshine Act (“Sunshine Act”) rule, issued by the Centers for Medicare and Medicaid Services (“CMS”) will be published. The arrival of this final rule has been much anticipated by those in the drug and medical device industry, in particular. The final rule implements section 6002 of the Affordable Care Act and requires applicable manufacturers of drugs, devices, biologicals, or medical supplies to annually report to CMS certain payments or transfers of value provided to most physicians and teaching hospitals ("covered recipients"). In addition, applicable manufacturers and applicable group purchasing organizations (GPOs) are required to annually report certain physician ownership or investment interests. Applicable manufacturers' and applicable GPOs' submitted payment and ownership and investment information will be published by CMS on a public website.
February 1, 2013
The Foreign Corrupt Practices Act (FCPA) was enacted in 1977 to prohibit U.S. companies and companies operating in the United States from paying bribes to foreign government officials, politicians, and political parties for the purpose of obtaining business opportunities abroad. In the past 35 years, the anti-bribery provisions of the law remain consistent but its enforcement has expanded considerably.
January 30, 2013
On June 28, 2012, in National Federation of Independent Business v. Sebelius, the US Supreme Court upheld the constitutionality of the Affordable Care Act, sustaining most of the provisions involved. The individual mandate, requiring those who choose to go without health insurance to pay a tax, was just one of those provisions upheld, but it is perhaps one of the most talked about aspects of the decision.
January 28, 2013
The D.C. Circuit Court of Appeals has invalidated the appointments of three members of the National Labor Relations Board who were designated on January 4, 2012. On January 25, 2013, the Court issued its ruling in Noel Canning v. NLRB, et al. Docket No. 12-1115. In Noel Canning, the employer sought to prohibit enforcement of a February 8, 2012 NLRB decision concluding it violated the National Labor Relations Act.
January 23, 2013
April 1, 2013 is the first day on which U.S. Citizenship and Immigration Services ("USCIS") may receive H-1B specialty worker petitions for the next fiscal year that begins on October 1, 2013. To qualify for the H-1B category, the position offered must be a specialty in which a bachelor's degree or its equivalent is normally the minimum requirement and the foreign national must hold a bachelor's level degree or its equivalent in the specialty defined by the position (this threshold can be met in some cases though a combination of education and work experience).
January 22, 2013
Last week, the Consumer Financial Protection Bureau (CFPB) issued its final Ability-to-Repay Rule (the Rule). The CFPB is also seeking comments on a concurrent proposal that would modify the ability-to-repay rule, which it intends to finalize this spring. The Rule, including any of the concurrent proposal’s changes that are finalized, will take effect on January 10, 2014.
January 18, 2013
On January 17, 2013, the U.S. Department of Health and Human Services (HHS) announced the release of the HIPAA final omnibus rule, which was years in the making. The final rule makes sweeping changes to the HIPAA compliance obligations of covered entities and business associates and comprises four final rules wrapped into one.
January 16, 2013
Ohio’s expungement laws have changed. The new law permits many more people the opportunity to have old convictions wiped away by expanding the types of convictions that may be sealed and also permitting persons with more than one conviction to seek expungement of their record.
January 16, 2013
A common question our Education Law Practice Group deals with relates to how the “step-up” process works for service personnel. The “step-up” process is found in W. Va. Code 18A-4-15, which in relevant part, states:
January 14, 2013
Under the Copyright Act, copyright owners are granted the exclusive right to prevent the unauthorized sale or distribution of copies of their works to the public. The first sale doctrine creates an exception to this rule by cutting off the copyright owner’s exclusive sales/distribution rights after the first sale of that copy. Essentially, this means a person who buys a copy of a book (or receives it as a gift) can dispose of the physical copy of the copyrighted work however she wants, whether for resale, giving the book away as a gift, or even destroying it, without violating the copyright owner’s rights
January 10, 2013
On December 12, 2012, the National Labor Relations Board (“NLRB”) overruled a 50–year-old precedent when it decided that employers have a duty to continue to deduct union dues from employees’ paychecks even after the expiration of the collective bargaining agreement that contained such a requirement. See WKYC-TV, Inc. 359 NLRB No. 30 (2012) overruling Bethlehem Steel, 136 NLRB No. 1500 (1962). A week later, the NLRB changed course on 30-year-old precedent when it determined that witness statements obtained during an employer investigation were no longer exempt from disclosure in pre-arbitration discovery. See American Baptist Homes of the West, 359 NLRB No. 46 (2012) overruling Anheuser-Busch, Inc., 237 NLRB 982 (1978). Each decision is discussed below.
January 8, 2013
On December 31, 2012, Congress sent the Medicare IVIG Access and Strengthening Medicare and Repaying Taxpayers Act (“the Act”) of 2012 to President Barack Obama for signature. The Act had strong bipartisan support, passing in the House with a vote of 401-3 and in the Senate with a unanimous consent vote. The Act consists of what originally were two separate bills, the Medicare IVIG Access Act (H.R. 1845) and the Strengthening Medicare and Repaying Taxpayers Act of 2011 (the SMART Act) (H.R. 1063). The two bills were combined for passage.
January 8, 2013
The decision is in and the employers won. Judge Richard McMonagle decided the Bureau of Workers’ Compensation (“BWC”) overcharged employers who did not participate in group rating from 2001 to 2009. Many of those could now receive refunds based upon the court’s future calculations. No damages have yet been determined, but the amount may range from $800,000 to $1.3 billion. Before spending the money, employers should know that this is subject to appeal. The checks are not, as they say, in the mail.
January 2, 2013
Early on January 1, 2013, the Senate, by a vote of 89 to 8, approved H.R. 8, “the American Taxpayer Relief Act” (ATRA or the Bill). The House of Representatives passed the Bill by a vote of 257 to 167.
January 2, 2013
Are you a civic-minded entrepreneur looking to turn a profit and make a social difference at the same time? Are you a consumer who purchases from or invests in companies with a sense of responsibility to the public and the environment? Are you a corporate director wary of shareholder reprisals triggered by your vote to consider interests other than the maximization of shareholder wealth? If you answered “yes” to any of the above, you might read further about “benefit corporations,” a new type of corporation taking hold in some states around the country.
2013
January 2013
December 27, 2012
As the landscape surrounding proxy materials and annual report disclosures continues to shift, it is important for public companies to anticipate such changes and ensure they are best positioned to respond. Below is a summary of current and anticipated changes that may impact reporting requirements in the coming year.
December 18, 2012
The Ohio Department of Health has proposed new administrative rules scheduled to take effect January 1, 2013 that will significantly impact the obligations of a home health agency (“HHA”) regarding background checks of its current and potential employees.
December 18, 2012
At its core, each business’s goal is usually the same – generating profits. This is true whether a business manufactures auto parts, provides medical services, or stages a traveling circus. Accordingly, a primary objective of each business is the collection of money owed; any business that fails to prioritize realization of its accounts receivable soon will find that it is no longer in business. Thus, it can be instructive to review one company’s errors and its failed attempts to collect a debt. While the company undoubtedly learned from its mistakes, other businesses would be wise to review its situation and learn those same lessons without experiencing the corresponding loss.
December 18, 2012
President Obama’s re-election and the Democrats’ retained control of the Senate mean that a repeal of the Patient Protection and Affordable Care Act before its tax provisions go into effect in early 2013 is highly unlikely.
December 14, 2012
All Ohio employers who are covered by the state insurance fund for workers’ compensation purposes could be impacted by an upcoming decision from the Court of Common Pleas in Cuyahoga County in a $1.38 billion class action case tried in August.
December 13, 2012
As telemedicine grows in popularity, it is important for physicians to be aware of the state-by-state requirements when practicing in this revolutionary area of healthcare.
December 13, 2012
Internet giant Paypal recently joined Sony, Microsoft, and Netflix to become one of the latest major companies to include a provision banning consumer class actions in its terms of service. Such waivers now frequently appear in consumer agreements along with arbitration clauses, governing law provisions, and confidentiality terms. These provisions are designed in part to help reduce the litigation costs these businesses face each year.
December 5, 2012
Based on the recently conducted 2012 Annual Manufacturing Wage and Benefit Survey, 52% of Kentucky manufacturers plan to hire between one and 19 employees in 2013. This is great news. However, if you are one of the businesses looking to hire qualified candidates and expand, this can be a challenging time. Beyond the goal of hiring the most qualified person, adding to your workforce raises issues of how to recruit, where to recruit and what laws apply to your expanded business. The following highlights some of the latest trends in hiring and provides some recommendations for employers.
November 28, 2012
If the recent decision of the Sixth Circuit Court of Appeals in United States v. Quality Stores survives appeal by the IRS, employers could be entitled to a refund of FICA taxes paid by them after 2008 on severance payments relating to plant closings, reductions in force, discontinuances of operations and other similar events. In order to preserve their right to a refund for 2009 and after should the decision survive appeal, employers must file a protective refund claim with the IRS before the statute of limitations for filing a FICA refund claim for a year expires. The statute generally is April 15 of the fourth year following the year for which the FICA payment was made. Thus, a refund claim for 2009 FICA taxes must be filed by April 15, 2013, the deadline for 2010 FICA taxes is April 15, 2014 and so on. Refund claims filed after the running of the statute will be denied automatically.
November 27, 2012
As reported on September 27, 2012, the West Virginia Supreme Court of Appeals was recently presented with a certified question concerning whether surface rights owners may bring a court action to challenge gas well drilling permits issued by the West Virginia Department of Environmental Protection (“DEP”). As anticipated based on the tenor of the oral argument held on September 25, 2012, the Court held on November 21, 2012, that surface owners may not bring such actions. (Martin v. Hamblet, No, 11-1157.)
November 21, 2012
November 16, 2012
November 13, 2012
If you search for the phrase “success in workers compensation hearings” on the internet you will undoubtedly be directed to a plethora of websites dedicated to assisting claimants win their workers compensation hearings. What you will not find are the same number of articles detailing how employers can achieve success in the hearing rooms. In an Industrial Commission hearing room in Ohio, the employee often has the advantage. Below are five tips that will level the playing field.
November 8, 2012
If you owe delinquent taxes to the Commonwealth of Kentucky, you have less than 30 days remaining to pay those taxes pursuant to the Tax Amnesty Program which concludes on November 30, 2012. After that, taxpayers who still owe taxes will be subject to full penalties and fees, a higher interest rate and prosecution.
November 8, 2012
For any businessperson, the prospect of new business is always exciting. Sometimes, this enthusiasm results from the opportunity to work alongside another person or company in what’s commonly known as a joint venture. Whether it’s a manufacturer and a distributor or an event planner and a caterer, it frequently can make the most sense, and the most money, to join forces. But the enthusiasm of entering into a new business arrangement with a partner shouldn’t overshadow the importance of getting it right; that is, making sure the venture is memorialized in an enforceable contract. Knowing, at the outset, exactly what each new partner is responsible for and what each brings to the table is not only sound business planning, but failing to adequately document the deal could nullify the whole arrangement. This could lead to lost profits and worse, costly litigation.
October 31, 2012
Trolls (non-practicing entities bent on licensing to anything that moves) often object to their nickname. But, the term is surprisingly accurate. Troll derives from “troller” a French hunting term meaning to “lead or drag somebody about” as a commercial rather than recreational activity. The Old Norse version of the word refers to creatures of mischief and wickedness. So, how does one fight one of these nefarious entities bent on dragging legitimate businesses through the court system for financial gain?
October 31, 2012
Is a health saving account (“HSA”) right for you? Find out in the article below which summarizes what a HSA is, who is eligible to establish one, types of expenses that can be paid with HSA funds, increases to HSA limits in 2013 and how health care reform changed the way HSAs are used.
October 30, 2012
By a per curiam (“for the Court”) decision issued on October 19, 2012, the West Virginia Supreme Court of Appeals ruled that the West Virginia Department of Environmental Protection (“WVDEP”) is obligated to pay the Hominy Creek Preservation Association (“HCPA”) more than $300,000 in attorneys’ fees and costs incurred in connection with two consolidated appeals brought before the West Virginia Surface Mine Board. Hominy Creek Preservation Association, Inc., v. WVDEP, No. 11-0749 (W.Va. Supreme Court, 10/19/12). In issuing its decision, the Supreme Court reversed an April 8, 2011 ruling by the Kanawha County Circuit Court. The lower court had concluded that the HCPA had no legal basis for seeking a fee award and that it had not prevailed on the merits of the underlying administrative appeals (involving various challenges to a permit issued to Green Valley Coal Company).
October 30, 2012
With the Hurricane Sandy knocking at our front doors, now seems like a good time to update Boards of Education on alternative work schedules for professional and service personnel. As we all know, in West Virginia a school system is always faced with a number of school cancellations and delays as a result of inclement weather. A common question from school administrators is: What discretion does a Board of Education have in issuing alternative work schedules on snow days?
October 24, 2012
The Patient Protection and Affordable Care Act contains multiple sections regarding compliance and ethics programs, including Section 6102. That section applies only to skilled nursing facilities that receive Medicare or Medicaid reimbursement. Section 6102 requires skilled nursing facilities to “have in operation a compliance and ethics program that is effective in preventing and detecting criminal, civil, and administrative violations . . . and in promoting quality of care consistent with regulations.”
October 21, 2012
October 19, 2012
The Food and Drug Administration (‘‘FDA’’) recently proposed a new system to track medical device malfunctions, increase patient safety and streamline product recall. On July 3, 2012, the FDA released its plan to label high-risk medical devices with tracking numbers, known as Unique Device Identifiers (‘‘UDI’’).
October 18, 2012
In its early stages, NCAA, et al. v. Christie, has taken on the appearance of Super Bowl XXXVI. As in Super Bowl XXXVI, the NCAA, NFL and other sports leagues, who filed the case to prevent Governor Chris Christie from establishing legal and regulated sports betting in New Jersey, resemble the St. Louis Rams and their coach, Mike Martz.
October 18, 2012
An automobile purchaser would exhibit poor judgment if he paid the purchase price without receiving an appropriately formalized transfer of title, and the seller would not be wise to transfer the title without having payment in hand. The representations and warrantees made by each party in a license agreement can be far more significant, financially and otherwise. Nevertheless, they may well be overlooked because they are often written in language that causes eyes to glaze over.
October 17, 2012
Budget hawks alarmed by the looming “fiscal cliff” have suggested eliminating the tax-exempt status of municipal bonds. They view this tax exemption as a “loophole” depriving the U.S. Treasury of as much as $37 billion.
October 11, 2012
If you are a health care provider who has received an Electronic Health Record (“EHR”) incentive payment for either Medicare or Medicaid EHR Incentive Programs, it is important that you prepare your business for a recent change implemented by the Centers for Medicare and Medicaid Services (“CMS”). Previously, health care providers receiving payments for the EHR Incentive Programs were simply required to attest meaningful use to CMS. As of July 2012, CMS may require you to do more than attest meaningful use. CMS quietly began to audit providers who received payments under the EHR incentive program this summer.
October 10, 2012
In a recent decision, the Kentucky Court of Appeals reaffirmed that there are still no hard and fast rules for employers attempting to draft non-compete agreements for their employees. In Charles T. Creech Inc. v. Brown, No. 2011-CA-000629-MR (Aug. 17, 2012), the Court concluded that a determination regarding whether to enforce a non-compete agreement requires “case-specific flexibility.” Moreover, the Court stated that a “blue pencil” rule, whereby courts will reform or amend restrictions in non-compete agreements if they believe the initial restriction to be overly burdensome or broad, extends to all provisions of a noncompetition agreement. For employers attempting to draft enforceable non-compete agreements this leaves great uncertainty as to whether agreements will be upheld as drafted. However, the Court left us with some guidance in the form of six factors that should be considered in every case, giving companies and their lawyers some tools to use when drafting these agreements—and when litigating to enforce them.
October 5, 2012
Recently, the Department of Justice and Federal Trade Commission held a day-long workshop regarding the antitrust implications of “most favored nation” clauses (“MFNs”).   MFNs are used in many industries as a way for a purchaser to ensure that it is getting the best price a seller has to offer, basically by saying if you sell this product to another buyer at a better price, you agree to sell it to me at that better price, too.  The idea is that if the buyer receives the same pricing as its competitors, it is better-positioned to compete with its rivals on price, and consumers benefit from lower prices.
October 5, 2012
A common question we see on a yearly basis from county boards of education relates to whether a service personnel employee whose regular employment contract has been terminated as a result of a reduction in force (but still has preferred recall status) is entitled to some kind of priority when it comes to the substitute list and certain substitute assignments. Recently our Education Law Practice Group handled an employee grievance for a county board of education in which many of these same issues were addressed and reaffirmed by the West Virginia Public Employees Grievance Board.
October 4, 2012
A joint-defense agreement is a useful tool, allowing counsel of co-defendants to share information and present a coordinated defense. However, these agreements must be carefully drafted to ensure that each individual client is protected. In particular, a provision that waives the right of members of the joint-defense to move to disqualify lawyers must be clear and precise. This helps ensure the client is protected while still allowing the attorneys involved some flexibility.
October 2, 2012
Mine operators across the United States have all shuddered at the news of MSHA issuing an exorbitant flagrant penalty assessment and have wondered when their operations could be next. These operators are not concerned because of their safety records, but because of the arbitrary and unfair nature of the flagrant standard, which until recently, cast a broad net. Recent Administrative Law Judge (“ALJ”) decisions have stemmed the tide of such arbitrary enforcement by questioning MSHA’s authority to issue flagrant assessments based on guidelines set forth in certain Procedure Instruction Letters (PIL) or by relying on prior, unrelated violations as the basis for such enforcement. To understand the significance of the recent ALJ decisions, it is necessary to review the brief history of MSHA’s use of flagrant penalty assessments as an enforcement tool.
September 28, 2012
The National Labor Relations Board (“NLRB”) has recently taken the position that two extremely common employer practices violate the rights of employees under Section 7 of the National Labor Relations Act (“NLRA”). Virtually all employer handbooks contain a provision which states that its employees are employed “at-will,” meaning that their employment can be terminated at any time for any lawful reason. Similarly, employers typically have a provision in their handbooks that any investigation conducted into an employee complaint will be kept confidential to the extent possible. Indeed, these policies have long been considered a deterrent, rather than a source of, potential liability, and to be necessary for employer protection against claims of contractual rights by employees (in the case of at-will language) or claims of discrimination, retaliation, or harassment (in the case of confidential investigations).
September 27, 2012
On September 25, 2012, the West Virginia Supreme Court of Appeals entertained oral arguments in the case of James Martin, Director v. Matthew L. Hamblet, Docket No. 11-1157. This appeal arises from a ruling issued by the Circuit Court of Doddridge County, West Virginia, finding in favor of Mr. Hamblet, the owner of the surface of land on which EQT Production Company proposes to drill a horizontal well targeting the Marcellus Shale formation. EQT was granted a permit by the West Virginia Department of Environmental Protection (WVDEP) to drill the well on Mr. Hamblet’s property, and the circuit court determined (over the objections of EQT and the WVDEP) that he has the right to appeal that permit in court.
September 26, 2012
The Employee Benefit Security Administration has developed a two-step disclosure requirement designed to make all fees paid in connection with retirement plans more transparent. The first disclosure required the service to provider to notify the plan sponsor, detailing the fees received in connection with the services rendered on behalf of the plan. These were colloquially referred to as 408(b)(2) Notices as the disclosure came from regulations issued by the Department of Labor (DOL) pursuant to ERISA Section 408(b)(2). These notices were generally required to be provided to plan sponsors on or before July 1, 2012.
September 21, 2012
In a Colorado federal court, a plaintiff named Wayne Watson argued that he had a rare lung disease caused by inhaling diacetyl vapors from microwave popcorn bags popped from his own microwave. He claimed in court that he made and consumed two to three bags a day of microwave popcorn on a regular basis for years. The microwave popcorn in question was made at the Gilster-Mary Lee plant in Jasper, Missouri, and distributed by a prominent retail food chain. On September 18, 2012, a Colorado jury awarded Mr. Watson nearly $7.3 million dollars against both Gilster-Mary Lee and the retail food chain. The award included $5 million in punitive damages. Mr. Watson is the first consumer to prevail in a lawsuit against a maker or seller of microwave popcorn.
September 18, 2012
Dinsmore’s Chuck Hertlein recently authored a chapter for Aspatore’s Special Report on the JOBS Act. Chuck penned chapter three of publication titled, "Can the Markets for Small and Middle Market Public Companies be Resurrected?”
September 18, 2012
The Jumpstart Our Businesses Act (the “JOBS Act”) is intended to provide easier access to funding for emerging companies.  Among other major changes, the JOBS Act increased the number of shareholders a company could have before it is required to register its stock with the Securities and Exchange Commission (the “SEC”), permitted the use of internet funding portals to raise money for certain small offerings, and relaxed other regulatory and disclosure requirements for small businesses.
September 17, 2012
September 13, 2012
An issue that often comes up for a county board of education is what rights do home-schooled children have to participate in interscholastic sports? In 2005, the West Virginia Supreme Court of Appeals ruled in Jones v. Marion County Board of Education, et al., "that treating public and nonpublic school children differently with respect to participation in interscholastic sports does not violate equal protection."
September 13, 2012
As expanded gambling brings renewed interest and attention to horse racing, tracks need to be sure to not make a bad bet on environmental compliance. Many tracks now must have or put in place management, containment and disposal plans to comply with the U.S. Environmental Protection Agency’s (EPA) extensive rules and regulations – or be exposed to substantial civil fines.
September 11, 2012
A wrongful discharge suit can be very costly to your company. These suits involve back pay; reinstatement or front pay until retirement; damages for humiliation and embarrassment; attorney fees; and in some situations, punitive damages. It’s not uncommon to hear of jury verdicts far exceeding $1 million for an individual plaintiff. Attorney fees payable to plaintiff’s counsel can often be assessed, which is on top of the verdict and can easily cost $300,000 to $500,000. Such cases not only expose the company to large monetary risk, they can be very disruptive to both production and morale.
September 7, 2012
America was first introduced to the plight of the “whistleblower” over 40 years ago, after Ralph Nader published his book Unsafe at Any Speed and thereafter was placed under surveillance and had his credibility and character publicly assailed by General Motors. After A. Ernest Fitzgerald exposed vast cost overruns by the U.S. Department of Defense and was summarily terminated from his employment in 1972, Congress charged to his defense and the public and media responded with outrage. The whistleblower as underdog in the public perception has since been ensured through cinematic portrayals of Frank Serpico, Karen Silkwood and Jeffrey Wigand as noble, courageous and sympathetic characters to be admired by all but the malicious evildoers around them.
September 6, 2012
To understand why the NFL will be irreparably harmed if Governor Chris Christie’s play to establish legal sports betting in New Jersey is successful, it helps to look at the traditional difference between betting on horse racing and betting on other sports such as NFL football.
September 4, 2012
Chick Gandil—the Chicago first baseman and the man who designed the infamous fix of the 1919 World Series between his White Sox and the Cincinnati Reds—probably viewed himself as nothing more than a rational futures trader. In 1919, the White Sox were the best team in the American League and the worst paid. Thus, after Chicago clinched the A.L. pennant and its spot in the World Series, Gandil and seven of his teammates agreed to sell their effort short during the World Series in exchange for $80,000.
2012
August 31, 2012
“Every fan who loves ‘the bomb’ should be grateful to [Sid] Gillman,” Ron Jaworksi, Greg Cosell, and David Plaut wrote in The Games That Changed The Games: The Evolution of the NFL in Seven Sundays.
August 31, 2012
Question: I am considering leaving my current company to join or start a competing company. I would like to start the process while still employed by my current employer. Among other things, I would like to start contacting potential investors, clients, and employees. Do I have any legal duties to my current company that would prevent me from doing this?
August 31, 2012
Now, in the middle of the presidential campaign, the issue of jobs is at the top of the agenda. With unemployment hovering at 8%, it is important that the US economy create and preserve stable, well-paid jobs that provide security for employees and their communities.
August 29, 2012
Your company terminates the employment of a highly skilled computer programmer who then attempts to sell the source code for your proprietary training software to a foreign entity. What would your company do?
August 20, 2012
On August 7, 2012, in Summit Petroleum v. EPA, the United States Court of Appeals for the Sixth Circuit struck down the U.S. Environmental Protection Agency’s broad interpretation of the word “adjacent” in its regulations. In its remand back to EPA, the court directed EPA to determine whether the emission sources at issue are “sufficiently physically proximate to be considered ‘adjacent’ within the ordinary, i.e., physical and geographical, meaning of that requirement.” That is, EPA cannot define the word “adjacent” to mean “inter-related.” Contiguity and distance matter.
August 14, 2012
Have you ever wondered why contracts do not have a clause that states the parties cannot commit fraud against the other? Contracts often try to contemplate every possible scenario, but a “No Fraud” clause usually is not one of them. Does that mean that one party can commit fraud against the other? Logic says, “No, of course not! It wouldn’t make sense to allow one party to defraud or cheat the other?” But how does the law enforce a provision that is not in the contract?
August 10, 2012
For the third time in the past 10 months, a federal court has declared that the Environmental Protection Agency (EPA) has violated the law through its efforts to impose additional restrictions on coal operations in the Appalachian States. On July 31, 2012, the federal District Court for the District of Columbia struck down EPA’s “guidance memorandum” for coal-related water permitting actions.
August 9, 2012
Pliva, Inc. v. Mensing, the seminal United States Supreme Court case on federal conflict preemption for generic drug makers, is now one year old. Since the Mensing opinion was issued in June of 2011, many courts have addressed whether state law failure to warn claims against generic drug manufacturers may still proceed. In most instances, the issue has been decided in favor of the generic drug manufacturers, but plaintiffs continue their efforts to navigate around the Supreme Court’s decision.
August 7, 2012
August 7, 2012
The National Labor Relations Board’s aggressive attack on employment policies and procedures outside the union workplace continues in earnest. Over the past several months, the NLRB’s Acting General Counsel has issued a series of “guidance memoranda” intended to reign in employers’ social media policies and practices. Since February 2012, the agency has demonstrated increased scrutiny of heretofore commonly accepted at-will employment disclaimers in employee handbooks, concluding such provisions could be construed as a limitation of an employee’s rights to engage in concerted activity.
August 7, 2012
If a firm states that a construction project possesses sustainable features or energy-efficient attributes relative to traditional practices, certain risk mitigation issues and practices must be addressed.
August 2, 2012
In a long awaited ruling, District of Columbia U.S. District Court Judge Reggie Walton ruled yesterday that the Environmental Protection Agency’s Final Guidance, relied upon by EPA to block Clean Water Act permits for virtually all new or expanded surface coal mining in Kentucky and West Virginia, was illegal and that EPA had exceeded its authority under the Clean Water Act and Surface Mining Control and Reclamation Act. Walton also ruled that the Final Guidance infringed upon the authority given by Congress to states to adopt their own water quality standards and police their own state waters.
August, 1, 2012
August 1, 2012
Although the summer internship season is coming to an end, it is never a bad time to evaluate your organization’s employment practices, and unpaid internships are no exception. Unpaid interns can gain valuable, real world experience (tremendously helpful in a sluggish and increasingly competitive job market), and employers often receive something valuable in return: free labor. The only problem with this arrangement is that employers who offer unpaid internships are probably violating federal wage and hour laws, something Charlie Rose is learning the hard way.
July 31, 2012
The United States Governmental Accountability Office (GAO) has published the findings of a study that advocates the use of the family premium as the employer mandated affordability requirement as outlined by the Affordable Care Act.
July 26, 2012
When a public records request is received, it is often difficult to know what you must supply and, if you feel you should deny the request, what steps you should take to ensure you are in compliance with the law. Defending your institution’s decision to deny a public records request can not only be costly, but a lawsuit over what unfortunately often appears to be an attempt to hide something can detrimentally affect your institution’s reputation. Every state has their own regulations concerning the release of public records. In addition, depending on what type of institution you are operating (such as an educational facility), federal law can come into play. Add to that possible attorney-client or work-product confidentiality exemptions, and the decision as to whether you must disclose or should deny a public records request can quickly become convoluted.
July 23, 2012
A recent decision out of the Court of Appeals for the District of Columbia Circuit could have lasting implications on all Copyright Royalty Board rate determinations since 2004. In the case Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board, a unanimous panel at the D.C. Circuit found that the structure of the Royalty Board was unconstitutional under the Appointments Clause.
July 23, 2012
An employee termination is always a difficult event. They are often emotionally-charged for the employer as well as the employee, which can lead to a hasty termination and confusion or anger on the part of the employee. While an employer may not be able to guarantee that a former employee will not bring a legal action against it, there are best practices an employer can follow to minimize the likelihood of an employee prevailing in such an action.
July 19, 2012
When federal mine inspectors issue citations for mine safety violations, they must indicate whether the infraction is one that ‘‘could significantly and substantially contribute to the cause and effect of a mine safety or health hazard,’’ according to the Federal Mine Safety and Health Act (Pub. L. No. 91-173). Congress never defined or offered guidance on what the phrase ‘‘significantly and substantially’’ actually means, leaving it instead for the courts to decide. The analysis used by the courts to determine if a violation is significant and substantial has been largely unchanged in the last 40 years.
July 17, 2012
This time of the year the personnel office is busy filling both professional and service personnel positions for the 2012-13 school year. Many of the professional positions are filled by the transferring of regular employees. However, House Bill 4583 changed the “stay put” period as it relates to the transfer of professional personnel.
July 16, 2012
On April 6, 2012, the Mine Safety and Health Administration (“MSHA”) unveiled its final rule in the Federal Register entitled “Examination of Work Areas in Underground Coal Mines for Violations of Mandatory Health and Safety Standards.” This new rule takes effect on August 6, 2012 and will have significant consequences to coal mine operators and their certified mine examiners. This new rule will impact the manner in which examinations are conducted, recorded and corrective action taken. The new rule will also give rise to potential increased liability of mine operators and their examiners personally and increase the financial burdens on an industry already facing unprecedented regulation, economic strain, decreased coal demand and permitting, layoffs and mine closures.
July 12, 2012
It is all too easy to get caught up in the excitement of buying a new horse or pony – but once you have found the perfect equine partner, you cannot overlook the need to properly document the purchase with a bill of sale. A good Pony Clubber would not go through a paddock gate without closing it behind her; properly executing a bill of sale is like closing the gate behind you when you purchase your new horse. The bill of sale shows that the ownership of the horse or pony has been transferred from the seller to the buyer, and the document can protect both parties after the deal closes.
July 11, 2012
On July 3, 2012 a statutory provision that has the potential to greatly impact the Consumer Sales Practices Act (“CSPA”) took effect. The new provision, Ohio Revised Code § 1345.092, was signed into law by Governor John Kasich on April 2, 2012 and allows “suppliers” in consumer transactions to make a cure offer to consumers who have filed a claim under the CSPA. If a legally sufficient cure offer is filed and served, but rejected by a consumer who is not awarded something greater by a judge, jury, or arbitrator, the consumer is not entitled to an award of treble damages, court costs, or attorneys’ fees that he or she may have otherwise been able to recover.
July 10, 2012
Ask any banker, and he will tell you, “It’s hard to say, ‘I’m sorry. You don’t qualify.’” Especially to a loan applicant who is a local business person with great instincts and a promising plan. It’s even harder to hear that news and know that the meetings, the applications and the due diligence leading up to that moment turned out to be a waste of time and resources.
July 6, 2012
The healthcare industry and government policymakers are confronting a familiar paradox in healthcare finance. With an aging population, rising healthcare costs, and an assortment of new subsidies following healthcare reform, increased spending seems unavoidable for the foreseeable future. On the other hand, with limited revenue growth and other noteworthy burdens on the federal budget, increased spending is no longer an option.
June 6, 2012
July 6, 2012
By a 5-4 vote and on the strength of an opinion by Chief Justice John Roberts, the United States Supreme Court upheld the individual mandate in President Obama’s signature Patient Protection and Affordable Care Act. Strictly speaking, Roberts’ opinion may have shown Congress excessive deference. But by upholding the individual mandate, Roberts has empowered the voters to finally decide the fate of Obamacare.
July 5, 2012
Think about how many emails, text messages and instant messages you send and receive each day. According to The Radicati Group, the average corporate employee sends and receives about 110 emails per day and the number doubles if they are one of the many who now use Instant Messaging at work or send text messages from company phones.
July 3, 2012
On May 10, 2012, CGS Administrators, LLC, the Medicare Administrative Contractor for Medicare Parts A and B in Ohio and Kentucky, announced that providers must perform and document all three elements of an Evaluation and Management (E&M) service in order to bill for any code higher than CPT 99211, the lowest subsequent office visit. The final coding level should still be assigned based on the highest two of the three elements.
July 2012
July 2012
The early 1970s ushered into Kentucky a push to bring about statutory changes that would open up state and local government to more effective public oversight. Prior to that time, Congress had enacted the federal Freedom of Information Act, and numerous states had followed suit with similar laws. Kentucky, however, had not codified the public's right to review governmental records. In the wake of the Vietnam War and the Watergate scandal, Kentucky's newspaper editors and publishers, working through the Kentucky Press Association, began to actively lobby the Kentucky General Assembly to bring more transparency to Kentucky government.
June 29, 2012
This summer, Michael Doman is taking his first classes at the University of Dayton School of Law. He might not be there if not for a man dead for more than a third of a century.
June 28, 2012
Today, by a 5-4 vote, on the strength of an opinion authored by Chief Justice John Roberts, the United States Supreme Court upheld the individual mandate in the Patient Protection and Affordable Care Act (“ACA”) signed into law by President Obama on March 23, 2010. View the decision. The Court rejected the argument that Congress had the authority under the Commerce Clause to require individuals to purchase health insurance. However, the Chief Justice deemed the individual mandate a “tax” for constitutional purposes, and then ruled that Congress had the constitutional authority to tax people who did not buy insurance. Seven members of the Court held that Congress lacked the constitutional authority to punish states that refused to expand Medicaid as provided by the ACA.
June 26, 2012
On June 21, 2012, the Occupational Safety and Health Administration (OSHA) issued a Hazard Alert on ensuring that employers in hydraulic fracturing operations take appropriate steps to protect workers from silica exposure. This alert followed the release of preliminary findings by the National Institute for Occupational Safety and Health (NIOSH) in May 2012 that found workers may be exposed to dust with high levels of respirable crystalline silica during hydraulic fracturing operations.
June 21, 2012
As I settle in at a table in my favorite cafe near my home, large coffee in hand, I check my work emails from my personal smart phone as I pull out my personal laptop and dial into my company servers providing access to all of our systems. I notice that at just about every table there is at least one other person mimicking my actions. What is going on? Are we here at this little noshery, just the fortunate few who have jobs that lend themselves to remote work and employers that don’t care or notice that we are not in our little cubicles back at the mother ship? Or is it something larger? More and more employers are either allowing, encouraging or are oblivious to the growing tsunami that is called “Bring Your Own Device” or BYOD.
June 20, 2012
Several new board of education members will begin their duties on July 1, 2012. Many of these duties are outlined in West Virginia Code § 18-5-13. These new board members will undergo new board member orientation and might feel overwhelmed with the "formal" process of board meetings and the West Virginia Open Governmental Proceedings Act, personnel issues, RIF and transfer season, superintendent evaluations, student expulsion hearings, etc. The purpose of this month's newsletter is to remind you and your board members (both new and old) that many issues, including personnel issues, discussed in executive session are communications which may be subject to discovery in a deposition or other legal proceeding by an impacted employee. In other words, the board cannot assume that what is discussed in executive session is privileged information which will remain behind closed doors.
June 18, 2012
A wrongful-discharge suit can be very costly to your company. These suits involve back pay, reinstatement or front pay until retirement; damages for humiliation and embarrassment; attorney fees; and in some situations, punitive damages. It’s not uncommon to hear of jury verdicts far exceeding $1 million for an individual plaintiff.
June 18, 2012
On June 11, 2012, Ohio Governor John Kasich signed into law Senate Bill 315, ushering in several changes to Ohio’s existing oil and gas laws. The law, pushed by the Kasich Administration, addresses what had been perceived as deficiencies in the statutes on the books in dealing with the issues unique to horizontal drilling and hydraulic fracturing.
June 13, 2012
Dinsmore’s Commercial Finance Practice Group frequently handles mortgage transactions where the mortgaged property is located in Maryland. One popular finance mechanism in Maryland has been the indemnity deed of trust or “IDOT”.
June 7, 2012
On May 9, 2012, President Barack Obama became the first sitting U.S. President to affirm his belief that same-sex couples should be able to get married. Weeks later on May 31st, the First Circuit Court of Appeals declared a portion of the Defense of Marriage Act (“DOMA”) unconstitutional.[1] In the coming weeks, the United States Supreme Court may decide to review Hollingsworth v. Perry, the Prop 8 case seeking to strike down the ban on freedom to marry in California; should they decline, however, the Ninth Circuit Court of Appeals’ decision declaring Prop 8 unconstitutional will be the law, thereby restoring same-sex marriage in California. These announcements are just three of many events that have shaped the current landscape in this country with respect to the rights of lesbian, gay, bisexual, and transgender (“LGBT”) Americans.
June 6, 2012
A rare Ohio earthquake on New Year’s Eve has provided new fuel in the growing controversy over shale gas exploration in the state. The earthquake, which was tied to the underground injection of wastewater from the fracking process, provided a new sense of urgency to create rules to address the environmental consequences of fracking. Ohio is in the process of crafting enhanced oil and gas regulations with the goal of making them the best in the nation.
June 4, 2012
Since the passage of the America Invents Act (AIA) in September, questions have ensued regarding the implementation of post-grant review (PGR). Proponents of PGR believe that it will provide another avenue for challenging patents, but remain unsure how effective and efficient the new process will be.
June 1, 2012
Generally, in West Virginia, an employer can terminate an employee at any time, with or without cause. The Supreme Courts Of Appeals of West Virginia and statutory law, however, have put limits on this employment-at-will doctrine. The court has required that this principle be tempered when the employer’s reason for terminating an employee contravenes a substantial public policy. West Virginia statutes restrict an employer’s right to discharge an employee under certain circumstances, such as when an employee is unable to work due to a compensable injury. Federal law also affects the employment-at-will doctrine through several statues, such as Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, or national origin. This article provides summarizes the significant exceptions to the employment-at-will doctrine and explains how employers can avoid liability under these exceptions when hiring, disciplining or terminating employees.
June 1, 2012
The last 20 years have witnessed a significant increase in the number of Americans who had contact with the criminal justice system, and correspondingly, a significant increase in the number of people with criminal records in the working-age population. In fact, according to the Bureau of Justice Statistics, if incarceration rates do not decrease, approximately 6.6% of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes, with arrest and incarceration rates particularly high for African-American and Hispanic men. As a result, employers have increasingly been forced to deal with consideration of arrest and convictions records when making hiring and other employment decisions.
May 25, 2012
The Uniformed Services Employment and Reemployment Rights (“USERRA"), 38 U.S.C. §4301 et seq., sets forth the rights and obligations of employees and employers with respect to military service leave. The Department of Defense has also promulgated regulations interpreting and implementing the statutory obligations of the parties. See 32 C.F.R. §104 et seq. The Federal Office of Personnel Management has issued a separate body of regulations governing the USERRA rights and obligations of federal employees. See 5 C.F.R. Part 353 et seq.
May 24, 2012
In practically all shareholder disputes concerning the sale of a company, the rules of the game determine who wins. So, as you plan the sale of a company it is important to pick the right rule book.
May 24, 2012
A disqualified retirement plan is not just a legal problem — it’s a business problem. In our experience counseling employers, we have identified 10 reasons that can disqualify your plan(s) — some of them are operational failures, some are technical oversights.
May 21, 2012
Administrative Law Judge Susan Biro joined Administrative Law Judge Thomas McCarthy in dismissing a penalty petition because the Secretary of Labor failed to file the petition within 45 days of a timely contest of a proposed penalty assessment.
May 21, 2012
The West Virginia Department of Environmental Protection (WVDEP) is currently taking an average of four months to process a complete well work permit application for proposed horizontal wells to be drilled in the Marcellus Shale gas formation, according to WVDEP Secretary Randy Huffman. Huffman, who spoke on May 10, 2012, at the West Virginia Oil and Natural Gas Association (WVONGA) Spring Meeting, conceded that this is approximately three (3) months longer than the agency’s historical review period for conventional oil and gas well permit applications. He attributed the delays to several different factors.
May 18, 2012
You recently read an article stating that a court found that a major national retailer owes overtime pay for work performed "off the clock" by workers in 27 stores. News reports talk of a $50 million price tag for a settlement of similar claims against the same employer in Colorado, and lawsuits have been filed in nearly 30 other states.
May 18, 2012
Many privately owned businesses find it difficult to face the issue of succession. Sale to an outsider provides immediate liquidity, but an immediate loss of control, while sales to key employees, family members or other insiders can allow a gradual transition and preservation of the business. However, seldom do family members or insiders have the cash necessary to provide liquidity to the business owner, and borrowing to finance an insider purchase can be inefficient from a tax standpoint.
May 17, 2012
Retaliation claims originate from employees engaging in a protected activity, such as reporting a violation of a federal law, and the employer retaliating by taking an adverse employment action against the employee. What is a protected activity is not always clear. For instance, an employee may be able to maintain a retaliation claim for reporting legal conduct, so long as the employee believed it was illegal. Other elements of a retaliation claim require that the employer initiate the adverse employment action because the employee engaged in protected activity. This article summarizes how an employer can identify a potentially protected activity and ensure that it complies with Title VII after an employee engages in a protected activity.
May 15, 2012
On May 14, 2012, the United States District Court for the District of Columbia invalidated the controversial regulation of the National Labor Relations Board (NLRB) that would have dramatically reduced the time frame of union organizing campaigns from the filing of a representation petition to the representational election. Chamber of Commerce, et al. v. NLRB (Decision).pdf The “ambush election” regulation, which was implemented on April 30, 2012, was roundly criticized because it limited the ability of employers to exercise their right under §8(c) of the National Labor Relations Act to communicate with employees regarding the impact of selecting a collective bargaining representative.
May 14, 2012
The U.S. Chamber’s Institute for Legal Reform (“ILR”) strongly supports the Lacey Act’s important fish, wildlife and plant conservation goals. However, the statute is deeply flawed. To begin with, the Act is an exemplar for the vice of over-criminalization. It lacks a meaningful mens rea (wrongful intent) requirement, instead imposing vicarious criminal and civil liability on American citizens for violations of a vast, uncharted universe of foreign laws, regulations, decrees and ordinances. As enforced, American musical instrument makers, fishermen, and florists are deemed to “know” all potentially applicable foreign requirements and then required to guess, at the risk of their liberty and property, how these requirements will be interpreted by both foreign and U.S. regulators. This offends basic principles of due process, equity and prudence.
May 14, 2012
Administrative Law Judge Thomas McCarthy gave a win for the industry in a decision vacating a citation issued to Knife River’s MBI Portable Crusher No. 1. In December 2010, an MSHA inspector issued a 104(a) non-S&S citation alleging that Knife River’s scale did not have rails that reached mid-axle height of the largest piece of equipment that traveled over the scale.
May 14, 2012
On April 30, 2012, the Equal Employment Opportunity Commission (EEOC)’s final rule amending its Age Discrimination in Employment Act (ADEA) regulations regarding disparate impact claims and the reasonable factors other than age (RFOA) defense took effect. The stated intent is to bring EEOC regulations regarding the RFOA in line with the recent Supreme Court cases, Smith v. City of Jackson and Meacham v. Knolls Atomic Power Laboratory. However, employers should be aware that the new rule appears to define RFOA more narrowly than under existing law and in a manner that will require employers to redefine their approach to creating new policies and practices in the workforce.
May 10, 2012
As of April 30th, 2012, the new NLRB procedures for union elections are in place. Dinsmore wrote about the details of these new rules last month. The issue now becomes what to do under this new world order. Employers no longer have the luxury of waiting until activity takes place to devise a plan - they must be more proactive. To make sure you’re prepared, we offer five simple but profoundly important actions to consider.
May 10, 2012
An employer can take several steps to effectively prevent and handle unlawful activity in the workplace. The first step an employer should take is ensure that it has a well-defined, carefully monitored, disciplinary policies and procedures. For a policy to be effective, the employer should ensure that all employees receive a copy of the policy and understand it. Further, employers should implement these policies and procedures before unlawful activity occurs by offering training courses for its managers, supervisors and employees. This article provides a summary of the steps an employer can and should take to prevent and cease unlawful activity in the workplace before and after it occurs.
May 9, 2012
May 9, 2012
If you are thinking about forming an LLC in Ohio for your new business, you may want to think again. And if you are a member of an existing Ohio LLC, the Ohio legislature just signed you up for a non-compete agreement with that LLC.
May 8, 2012
Social media isn't something that can be pigeonholed into one segment or area of yours or your client's business. Instead, it impacts every facet of the business, from human resources and marketing/advertising to research & development, and routine operating decisions. Even if you or your clients are only using social media for occasional free advertising, the employees of your organizations are using social media daily, bringing with that new issues in labor, intellectual property, corporate and other areas of the law that must be addressed.
May 3, 2012
The Kentucky Supreme Court recently ruled that a private, non-profit entity which acquired and marketed property in order to attract new business to Floyd County, did not qualify for an exemption from paying ad valorem real property taxes. Connie Hancock, Floyd County Property Valuation Administrator, et al. v. Prestonsburg Industrial Corporation, et al., 2010-SC-000376-DG, decision rendered on April 26, 2012. The Prestonsburg Industrial Corporation (“PIC”), a non-profit industrial development company, founded in 1968 by several Prestonsburg businesspersons, had not paid real property taxes on the real property that it acquired, improved and marketed to potential businesses since its inception. The Supreme Court determined that PIC was not entitled to a tax exemption because it was neither a governmental agency nor was it a purely public charity which was exempt from taxation under Section 170 of the Kentucky Constitution.
May 3, 2012
Over the past few years, the Equal Employment Opportunity Commission (EEOC) has shifted its focus towards systemic lawsuits. It has also been able to obtain larger settlements than in the past. This article provides an overview of these and other recent EEOC trends.
May 2012
May 1, 2012
Together with industry tax advisors at Dean Dorton Allen Ford PLLC, our equine attorneys offer equine owners and professionals an up-to-date sales and use tax resource you can download and use as your own reference guide for transactions.
May 2012
As was addressed in a preceding article of this series, license agreements frequently include specified minimum advertising requirements that the licensee must expend in promoting its own licensed articles. The Common Marketing Fund (“CMF”) is a separate element of cost of participation required by many licensors that may or may not provide marketing support for the licensee. Ten years ago it was still a new concept and was strongly resisted by many licensees; today it is more rule than exception and has found its way into licensors’ standard form agreements.
Summer, 2012
April 30, 2012
In recent years, cash-strapped states have begun to seek alternative means of generating revenue and boosting state coffers-including exploring expanded gaming. For some states, this meant the legalization of casinos, once considered the exclusive territory of Nevada, Atlantic City, and the tribal authorities. However, the frontier of expanded gaming stretches well beyond casinos and slot machines.
April 27, 2012
A recent court ruling could make it easier for employers to insist on regular attendance, even with disabled employees. Earlier this month the U.S. Court of Appeals for the Ninth Circuit rejected a nurse’s claim that her rights under the Americans with Disabilities Act (“ADA”) were violated when her employer terminated her for poor attendance.
April 25, 2012
On April 17, 2012, the U.S. Environmental Protection Agency issued final air emission standards for oil and natural gas operations. Many of EPA’s new requirements reflect a toughening of standards already on the books. But EPA’s new rule also extends to sources of emissions not previously regulated, including fractured and refractured wells. Highlights of the rule are noted below.
April 24, 2012
Health care providers are required to obey a properly issued grand jury subpoena seeking medical records or other confidential patient information, right? After all, it’s a subpoena. The answer may not be as straightforward as it seems.
April 23, 2012
Who really cares about all of those boilerplate provisions at the end of your purchase agreement? Well, you will if your deal ever blows up. This is the first in a series of blog posts where we will talk about some of those boilerplate provisions and what they mean.
April 19, 2012
A deep recession and lethargic recovery have taken their toll on the U.S. construction industry. But despite the overall sluggishness in the construction sector, the U.S. green-building sector has flourished. Due in large part to federal government funding, green-building elements advanced into the building industry mainstream. According to a new study by McGraw-Hill Construction, 35 percent of architects, engineers, and contractors report having green jobs, which represents one-third of the industry. That share is expected to increase so that by 2014 green jobs will comprise 45 percent of all design and construction jobs.
April 19, 2012
Endeavoring to stimulate the economy, Congress passed, and on April 5, 2012, the President signed, the Jumpstart Our Business Startups Act (the “JOBS Act”). This law will have a significant effect on the rules governing capital-raising and securities registration for many companies. Key provisions of the JOBS Act include: the removal of certain marketing restrictions for private funds, a provision authorizing crowdsource business funding in relatively small amounts, and other provisions generally intended to facilitate capital-raising for businesses.
April 18, 2012
The property/casualty insurance industry is filled with highly ethical people trying to do the right thing in their business dealings. Despite this, many in the public have the perception that the property/casualty insurance sector is less ethical than other areas of business. To help address this misperception and to support ethical behavior throughout the industry, The Institutes (the American Institute for CPCU and the Insurance Institute of America) issued in 2010 a set of ethical guidelines intended for all insurance professionals. The Ethical Guidelines for Insurance Professionals (the “Guidelines”) are based on the CPCU Code of Professional Conduct (the “CPCU Code”). However, unlike the CPCU Code, the Guidelines do not have specific rules or enforcement procedures. Rather, they consist of just seven canons providing general guidance on ethical conduct and professionalism. The Institutes’ hope in promulgating the Guidelines is that insurance professionals who are not CPCUs, and therefore not bound to follow the CPCU Code, will voluntarily follow the Guidelines and act ethically in their daily business activities.
April 17, 2012
On April 17, 2012, the Circuit Court for the District of Columbia issued an injunction against the National Labor Relations Board requiring it to preserve the “status quo” regarding its efforts to require employers to post notices identifying employee rights to organize a union. In a brief order the Court granted the emergency motion for injunction pending appeal of the National Association of Manufacturers. The impact of the order will be to require the NLRB to preserve the “status quo” pending resolution of the NAM appeal of a decision of the district court of the District of Columbia that recognized the right of the Agency to require the posting, but invalidated the portions of the regulation that created a new unfair labor practice to enforce the posting requirement and permitted the agency to suspend the statute of limitations regarding the filing of those charges.
April 17, 2012
An issue that arises every summer for counties relates to summer employment and summer seniority for service personnel. W. Va. Code 18-5-39(f) addresses the establishment of summer school programs.
April 11, 2012
A case can be made, upon reviewing the full sweep of President Barack Obama’s first term, that the Administration’s top priority has not been health care, the Iranian nuclear program or economic recovery. It has been, instead, the U.S. coal industry’s ruination.
April 5, 2012
On April 30, 2012, just a few short weeks away, two critical changes that will affect just about every private sector employer are slated to go into effect. Whether your organization has a union, or is union-free, these changes could have important implications for your workplace policies and will affect the way you handle issues during union organizing campaigns.
April 4, 2012
If one was to search the Internet using the phrases “EPA,” “stunning,” and “entirely disingenuous,” as of March 23, 2012, a new document would be included in the list of results. That would be the Memorandum Opinion issued by United States District Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia, in the matter of Mingo Logan Coal Company, Inc., v. U.S. Environmental Protection Agency (Civ. Action No. 10-0541; 3/23/12). In it, Judge Jackson announced her decision invalidating EPA’s so-called “veto” of a Clean Water Act § 404 permit that had been issued to Mingo Logan by the U.S. Army Corps of Engineers, authorizing the construction of several valley fills at Mingo Logan’s Spruce No. 1 coal mining operation in Logan County, West Virginia.
April 3, 2012
Even the best relationships can sour, and business relationships are no exception. Indeed, the longer a business lasts and the more changes it experiences over its lifetime, the greater the possibility that mere disagreements can turn into full-blown legal disputes. If you hold a majority stake in a business, how can you minimize the harm to yourself and your business as a result of the dispute?
April 3, 2012
There are many generous tax benefits that come from having a “qualified” retirement plan (such as a section 401(k) plan). For example, as an employer, you can deduct your plan contributions, but participating employees don’t have to recognize the contributions as income until they receive a distribution; usually many years later. However, those tax benefits disappear if your plan loses its qualified status.
March 30, 2012
The Kentucky Association of Manufacturer’s Chemical Industry Council continues to aggressively advocate for the improvement of Kentucky’s environmental and regulatory system and how it impacts Kentucky’s manufacturers. Kentucky CIC’s mission is to serve, in coordination with KAM resources, as a clearinghouse, educational resource and champion for environmental, safety and other matters important to its membership. The CIC supports environmental programs that are based on sound science, consider cost-benefit relationships, and consider technical and economic feasibility.
March 29, 2012
Horizontal wells drilled into the Marcellus Shale formation typically require as much as five million gallons of water or more for use in hydraulic fracturing. This is a consequence of both the low permeability of the Marcellus Shale and the substantial lateral reach of such wells. In many cases, this requires construction of an impoundment in nearby creeks or streams, to create a pond for use either with a single installation or to service multiple pad sites.
March 27, 2012
Exporting to Australia just got a little trickier for consumer product and service providers. The Australian Consumer Law (the “Act”) was recently amended to expand the warranty protections afforded to consumers. These changes not only have an effect on the obligations you owe to a consumer, they will also require changes to your packaging.
March 27, 2012
Russian President Dmitry Medvedev signed a federal law acceding to the Organization for Economic Cooperation and Development’s anti-bribery convention on Feb. 1, 2012. Russia joins thirty-four other countries to have joined the convention.
March 27, 2012
Businesses trading internationally have long debated the payment models available to them and their respective costs and risks. Open account is by far the most prevalent, but it carries with it a large credit risk, particularly in emerging countries, such as Brazil, Russia, India, and China. Letters of credit are an obvious alternative, but buyers are wary of the added costs and burdens associated with issuance, confirmation, the exchange of documents, and of course, discrepancies.
March 27, 2012
A unanimous United States Supreme Court decision has sent a loud-and-clear message to the U.S. Environmental Protection Agency that it will not allow the agency to bully private citizens and corporations with unilateral administrative orders without prompt judicial review.
March 22, 2012
Small and medium-sized businesses provide valuable goods, services, and jobs. Often, they are run as corporations in which the controlling officers and directors also are the major shareholders. Frequently, friends and family found these businesses together. But even successful businesses owned by friends and family aren’t immune to problems resulting from circumstances and relationships that change over time.
March 16, 2012
Many employers seek to regulate various aspects of employees’ personal conduct, such as restricting romantic relationships and limiting what employees may say through social media--and with good reason: Romantic relationships among employees may lead to accusations of workplace unfairness when implementing disciplinary measures or awarding privileges, or perceived favoritism regarding assignment of job responsibilities or promotion decisions; particularly when one of the involved employees supervises the other. Workplace relationships can also negatively impact employee morale, decrease productivity and, most importantly, result in sexual harassment claims. Employee conduct on social media outlets creates similar problems.
March 14, 2012
In the wake of the national attention directed towards residential mortgages in the last few years, certain revisions were made to the Federal Rules of Bankruptcy Procedure to address perceived deficiencies in bankruptcy proofs of claim. The rule changes were first proposed in 2009 by the Judicial Conference of the United States and became effective December 1, 2011.
March 9, 2012
A deep recession and lethargic recovery have taken their toll on the U.S. construction industry. But despite the overall sluggishness in the construction sector, the U.S. green building sector has flourished. Due in large part to federal government funding, green building elements advanced into the building industry mainstream. According to a new study by McGraw-Hill Construction, 35% of architects, engineers, and contractors report having green jobs, which represents one-third of the industry. That share is expected to increase over the next three years, with 45% of all design and construction jobs being green by 2014.
March 7, 2012
The Centers for Medicare & Medicaid Services (“CMS”) proposed regulations governing the Patient Protection and Affordable Care Act’s (“Act”) requirement that overpayments to providers be repaid in sixty days. Specifically, the Act requires that a provider receiving an overpayment must report the overpayment and repay it by the later of 1) 60 days after the overpayment is identified or 2) the date that any corresponding cost report is due, if applicable. The latter applies only to overpayments that are generally reconciled on a cost report.
March 6, 2012
March 5, 2012
As we all know, W. Va. Code 18A-5-1a and State Policy 4373 require that a student be afforded a hearing before the county board of education prior to being expelled.
March 2, 2012
In Ohio, property owners can contest the value of their property for real estate tax purposes. The mechanism to do this is to a file a “Complaint Against the Valuation of Real Property” with the county auditor. Then, a hearing on the complaint is heard by the county Board of Revision (“BOR”). The deadline to file these complaints for the 2011 tax year is April 2, 2012. If your company is contemplating filing a complaint, avoid having your complaint dismissed based on the unauthorized practice of law.
March 2, 2012
The Patient Protection and Affordable Care Act , as amended by the Health Care and Education Reconciliation Act of 2010 (the “Affordable Care Act”) makes a number of significant changes to the way employers and their employees will secure health care coverage and how the cost of that coverage will be allocated among the U.S. Government, the states, employers, and their employees.
March 1, 2012
It is said that in law you only get one bite at the apple. However, in the course of a products liability lawsuit, plaintiffs will often try to get as many bites as they can. When plaintiffs file both a workers’ compensation claim and products liability lawsuit based on the same injury, this can potentially serve to benefit defendants. Indeed, an unfavorable workers’ compensation ruling against a plaintiff could be used as a vehicle to get summary judgment through the doctrine of collateral estoppel.
March 2012
March 2012
March 2012
March 1, 2012
Data suggests that Canadian buyers have quietly (or maybe not so quietly) become a force to be reckoned with in the M&A marketplace. According to the PWC Capital Markets Flash/Deals Quarterly, M&A activity in Canada, and outside Canada by Canadian players, was robust in 2011. Nearly $190 billion worth of transactions were announced in 2011, and the number of deals - 3,173 - was an all time high. Valuations were up 22% over 2010.
March 2012
March 2012
March 2012
February 17, 2012
Recent articles appearing in the New York Times and Wall Street Journal, respectively, question whether our nation’s law schools are providing sufficient practical training to their students. It is an age-old criticism of law schools that the graduating law student is not equipped to immediately begin practicing his/her trade. It is true that many students graduate from law school without ever seeing real lawyers engaged in litigation or witnessing a business transaction, even a simple home loan closing.
February 17, 2012
Work-related meetings sometimes include a meal and begin with an invocation -- this usually involves a brief prayer of thanks. Many jobsites, especially those with a measure of risk, will end a safety meeting with a brief prayer to keep all workers safe during their shift. Just as there are persons who would be dismayed to have such practices ceased, there are those who object to and resent being asked to engage in prayer at their workplace.
February 17, 2012
February 15, 2012
One of the most important attributes of any successful business is a relationship built on trust between the employer and the employee. One very important tool to communicate and establish this relationship is through an employee handbook. It is the employee handbook that creates company policies, procedures and expectations that serve to avoid potential conflicts and misunderstandings. Additionally, a well written handbook establishes a structured work environment that builds company loyalty.
February 14, 2012
With changes to time-tested understandings about what violations are “significant and substantial,” mine operators face an increasingly challenging enforcement environment. Successful operators will meet these challenges with heightened awareness, careful planning and increased vigilance.
February 14, 2012
It’s the rare coal company that has not encountered illicit drug use among its employees. Employers report finding evidence of marijuana cigarettes or pipes in the cabs of both surface and underground equipment. One company that had a video camera running in a supply area was stunned to see an employee crushing pills and snorting them in powdered form using a rolled up dollar bill. If the pills were prescribed, that cannot have been the delivery method prescribed by his physician. To be sure, miners are not the only persons who respond to the siren-call of “getting high”, but statistics for the mining profession are higher than other professions and these statistics are not conducive to the safe work environment our miners deserve.
February 7, 2012
As we start a new year, plan sponsors and plan administrators should be aware of important upcoming changes affecting employee benefits in 2012. This Part I discusses changes impacting qualified plans, including recently released final 408(b)(2) regulations regarding fee disclosure requirements. Part II will discuss changes impacting health and welfare plans.
February 5, 2012
February 3, 2012
In recent years, Kentucky has ranked among the states with the highest rates of child abuse deaths. Also in recent years, Kentucky has been among the states with the least transparency in its state child protection services. Although Kentucky has a very strong state freedom of information law, the Open Records Act, for years the state agency in charge of child protection services has essentially exempted itself from the law and has operated within a culture of complete secrecy. We have represented The Courier-Journal in a fight to change that in a series of lawsuits pitting the Cabinet for Health and Family Services (Kentucky’s largest state agency) against Kentucky’s two largest newspapers, the Louisville Courier-Journal and the Lexington Herald-Leader.
February 1, 2012
Four things you need to know to protect your lien rights in Ohio: Know your deadline for filing the lien, Know if you have to provide a “Notice of Furnishing,” Know what you are signing & Know what information your counsel will need to prepare a mechanic’s lien.
February 1, 2012
Earlier this year, the Supreme Court surprised many employers by ruling that an employee’s internal, verbal complaint was covered by the federal law that protects employees from retaliation who have “filed any complaint or instituted . . . any proceeding” related to the Fair Labor Standards Act (“FLSA”). See Kasten v. Saint-Gobain Performance Plastics Corp. ___ U.S. ___, 131 S.Ct. 1325 (2011). Kevin Kasten sued his former employer, Saint-Gobain Performance Plastics Corporation, after it discharged him for the stated reason that he failed to accurately record his time worked on the company time clock. Kasten’s lawsuit claimed that the company unlawfully discharged him in retaliation for complaining about time keeping and the time clock. Kasten admitted that he had not filed any written complaints with the company or a governmental agency prior to discharge, but maintained that he complained orally to his shift supervisor about his “concern” that “it was illegal for the time clocks to be where they were’” because it excluded “the time you come in and start doing stuff.”
January 31, 2012
By now, most of us have had a chance to review the Education Efficiency Audit of West Virginia's Primary and Secondary Education System (“Audit”), conducted by Public Works LLC. The Audit resulted in more than 50 findings and recommendations. The auditors, among other things, declared that West Virginia has one of the most highly regulated education systems in the country with many details linked to state code, which results in little flexibility to modify policy and operations.
January 30, 2012
As a business owner you likely never imagined that the Arms Export Control Act (“AECA”) and the International Traffic in Arms Regulation (“ITAR”) might apply to you and your business. But the broad scope of these laws can have a substantial effect on both and result in serious consequences. Congress enacted these laws during the Cold War to control the import and export of defense articles, including nuclear weapons, listed on the United States Munitions List (“USML”). The AECA gives the President the authority to control the export of defense articles, and ITAR then delegates the statutory authority to the Secretary of State. The Secretary of State then regulates the import and export of the items and services listed on the USML. Due to additional regulation of exports in the past decade, enforcement by the United States government of activities under AECA and ITAR increased noticeably. As a result, individuals and businesses involved with items or services on the USML need to be aware of the implications and requirements under AECA and ITAR. This article addresses: (i) items on the USML; (ii) the application and requirements of AECA and ITAR pursuant to inclusion on the USML; and (iii) suggested steps if violations have already occurred.
January 19, 2012
The online gaming, or igaming, industry, which began in 1995, is thriving. Now, thanks to a recent legal opinion from the Justice Department, many states may soon move to capitalize on the industry's momentum.
January 12, 2012
Welcome to Dinsmore & Shohl’s CAFA Connection, a firm e-publication reporting on cases decided under the Class Action Fairness Act ("CAFA"). Although CAFA was enacted in 2005, many of its important provisions are the subject of ongoing judicial interpretation. This newsletter contains a summary of recent case law developments under CAFA.
January 9, 2011
Organized labor has diagnosed the sickness that has generated the steady decline of its membership over the last three decades: Employees know too much. On Dec. 21, the National Labor Relations Board took up the issue by implementing yet another administrative regulation to keep employees in the dark.
January 6, 2012
In today’s challenging economy and uncertain tax climate, a captive insurance company can offer multiple benefits. While a captive insurance arrangement is not a good fit for every, or even most businesses, for those businesses with a certain risk profile and the available cash flow, forming a captive insurance company can help to minimize insurance costs, control risks, improve cash flow and even serve as a wealth accumulation tool.
January 5, 2012
On October 27, 2011, the NCAA Division I Board of Directors approved a proposal that allows individual conferences to increase a student-athlete’s annual scholarship by $2,000.00. The purpose of this increase is to more closely approach the full cost of attending college beyond what is granted in a full athletic scholarship. Presently, a student-athlete receiving a full scholarship, or full grant-in-aid, receives money for tuition, fees, room and board, and books. However, as most college students can attest, there are other expenses incurred throughout the undergraduate years aside from those covered by a full grant-in-aid.
January 5, 2012
Several privately-held community banks have gotten a nasty surprise this year when they have received a letter from the Financial Industry Regulatory Authority (“FINRA”) imposing fees of $5,000 or more for late filings pursuant to FINRA Rule 6490. Community banks need to be aware that having a broker-dealer create a market in their securities can now result in a privately-held bank or holding company unknowingly becoming subject to FINRA reporting requirements that mimic that of a SEC-registered company.
January 4, 2012
Allowing West Virginia Governor Earl Ray Tomblin to hold true to a campaign pledge, on December 14, 2011, the Legislature passed (in Special Session) House Bill 401, encompassing the “Natural Gas Horizontal Well Control Act” as well as amendments to several existing laws that together establish a comprehensive, detailed system for permitting and regulation of horizontal natural gas wells. The new statute, given the short title of “Horizontal Well Act,” applies to any proposed natural gas well (other than coalbed methane wells) that would employ a horizontal drilling method that (a) will disturb three acres or more of surface land or use more than 210,000 gallons of water in a 30-day period; and (b) was not permitted or the subject of an order relating to a permit application filed prior to its effective date.
January 4, 2012
On December 21, 2011, the National Labor Relations Board (NLRB) announced its intent to adopt new rules to amend its procedures governing the filing and processing of petitions relating to the representation of employees for purposes of collective bargaining with their employer. Published in its final form on December 22, 2011, this rule claims to expedite the union election process, as well as to eliminate unnecessary litigation, delay, and duplicative regulations.
January 3, 2012
The West Virginia Department of Education recently approved a new version of Policy 4373: Expected Behavior in Safe and Supportive Schools which will go into effect for county boards of education beginning on July 1, 2012. This updated, comprehensive policy provides school employees, students, and parents/guardians with a single policy that includes expectations in all aspects of student behavior and expectations for school systems to provide safe and supportive schools. Among other things, Policy 4373 requires county boards of education to design and implement procedures to create and support continuous school climate/culture improvement process within all schools that will insure an orderly and safe environment that is conducive to learning.
2012
2012
December 21, 2011
On December 20, 2011 the National Labor Relations Board ("NLRB") finalized its “ambush election” regulation, dramatically reducing the period between the filing of a labor union’s petition to represent employees and the election to determine whether the union should be certified.
December 15, 2011
The risk of employer liability for being tricked into taking an adverse employment action against an employee by a supervisor with discriminatory motives, i.e. cat’s paw liability, is real. On the heels of the U.S. Supreme Court’s March, 2011 decision in Staub v. Proctor Hospital, a number of lower courts have taken up the issue and found a basis for cat’s paw liability pursuant to various statutes. Additionally, since many states’ courts simply follow federal law when interpreting state civil rights laws, the cat’s paw legal theory is likely to find its way to purely state law cases as well as administrative agency investigations. This expansion of cat’s paw liability risk may require an expansion of HR compliance.
December 14, 2011
As the directors and officers of public companies know, the rules and regulations governing proxy materials are dynamic and continually changing. In the past year, for instance, one proxy access rule has been vacated and another has been implemented. This is a summary of the changes in the past year that may affect companies’ 2012 proxy materials.
December 12, 2011
The recent news involving Penn State highlights how high the stakes can be when conducting an internal investigation. In fact, Penn State has hired former FBI director Louis Freeh to lead its internal investigation into alleged criminal conduct by a former employee. But while most employers do not face circumstances this challenging, the reality is that employers are presented with circumstances on a regular basis that must be investigated effectively to avoid significant legal liability.
December 8, 2011
As we begin prepare for another busy personnel season, a question that seems to come up often concerns the listing of individual employee names on county board of education agendas. Many administrators are, understandably, concerned about revealing the names of employees who are recommended for various personnel actions, such as reductions in force (“RIF”) and transfers, while still complying with the West Virginia Open Governmental Proceedings Act (“Act”). And, many have concerns of prejudgment by the board of education if individual names are placed on the agenda.
December 7, 2011
Did you know that failing to report and return discovered overpayments to Medicare or Medicaid within 60 days can lead to False Claims Act liability and potentially $11,000 in penalties for claims left unreported or unreturned? Did you know that federal law gives financial incentives for disgruntled employees to report any violations of healthcare law to the government? Protect your organization from this liability by understanding the Voluntary Self-Disclosure Protocol.
December 6, 2011
On September 12, 2011, the International Chamber of Commerce released a revised version of its Rules of Arbitration, which were drafted and have been in use since 1998. The revised Rules will apply to ICC arbitrations commenced after January 1, 2012, and are intended to meet the growing complexity of international business and ensure that the process is conducted in an “expeditious and cost-effective manner.”
December 6, 2011
With interest rates dropping, you should consider acting now to take advantage of this rare opportunity. The 7520 Rate for transactions in December is 1.6%. This represents a nearly 50% decrease from the May rate of 3%.
December 2, 2011
An international corporation and three of its executives recently pled guilty in response to the first charges to emerge from the Department of Justice Antitrust Division’s ongoing investigation into bid rigging, price fixing, and other anticompetitive conduct in the automotive parts industry. Furukawa Electric Co. Ltd. and three of its executives agreed to four separate four-count felony charges alleging a conspiracy to rig bids for and to fix, stabilize, and maintain the prices of automotive wire harnesses and related products sold in the United States and other countries. The felony counts alleged that officers and executives of the company met and agreed to allocate the supply of, to rig bids quoted to automobile manufacturers for, and to coordinate price adjustments requested for automotive wire harnesses and other products. Their actions affected both interstate and foreign trade and commerce. As a result of the plea agreement with the federal government, Furukawa will pay $200 million in criminal fines and the three executives will serve various jail sentences, from a year and a day to eighteen months in jail.
December 1, 2011
Dinsmore’s Doug Feichtner and Andy Kwiatkowski recently authored a chapter for Aspatore publications titled "Inside the Minds: New Developments in Green Construction Law.” The author’s penned chapter one of publication titled, "LEED, Follow, or Get Out of the Way: New Developments in Green Building Present Litigation Risks to Building Industry.”
December 1, 2011
On November 2, 2011, the Centers for Medicare & Medicaid Services’ ("CMS") “Medicare Shared Savings Program: Accountable Care Organizations” Final Rule was published, after its release on October 20, 2011. The Final Rule, effective January 1, 2012, implements Section 3022 of the Patient Protection and Affordable Care Act and has been met with mixed reviews from leaders across the healthcare industry. Under the Medicare Shared Savings Program ( “MSSP”), providers who organize as ACOs would continue to receive fee-for-service payments under Parts A and B and be eligible for additional payments if they meet specified quality and savings requirements, but not without risk, at least in the long term.
December 2011
December 1, 2011
A lender is considering a commercial mortgage loan secured by an apartment building. The apartment building was built in 1973. How should the lender evaluate the potential that lead-based paint was used in the property?
November 21, 2011
Most companies, especially those starting out, do not realize that from the start they already have and own a trademark. A trademark is defined as any word, symbol, phrase, device, or combination thereof used to identify a source of a good or service. Trademark rights do not depend on registration with the US Trademark Office, but arise as soon as use of the mark is made in commerce. These are known as “common law” rights. Thus, your company name, the names of your products and services, any marketing tag lines, or logos are trademarks already owned by your organization and enforceable against third parties.
November 17, 2011
Governor John Kasich recently signed Executive Order 2011-28K, adopting provisions of the Ohio Administrative Code to implement a new tax incentive program commonly known as InvestOhio (the “Program”) enacted by the Ohio Legislature to stimulate new equity investment in Ohio small businesses. The Program permits certain taxpayers who invest up to $10 million in eligible Ohio small businesses to claim a 10 percent income tax credit at the end of the holding period provided the investment is held for the applicable holding period.
November 16, 2011
In October, 2011, the 7520 rate dropped 0.6% from September to reach an all time low of 1.4% and remains at 1.4% for November. The rate was 3.0% just a few months ago in May. This drop provides a rare opportunity to take advantage of estate planning techniques designed to utilize low interest rates.
November 1, 2011
Dinsmore’s Jim Comodeca and Gabrielle Hils recently authored a chapter for Aspatore publications titled "Inside the Minds: Litigating Products Liability Class Actions: Leading Lawyers on Interpreting Recent Decisions, Assessing a Case’s Validity, and Preparing for Trial.” The author’s penned chapter seven of publication titled, "CAFA, Wal-Mart v. Dukes, and Other Key Developments in Class Action Litigation.”
November 1, 2011
With the high school regular football season soon coming to an end in West Virginia, come the playoffs for 48 high schools. With the playoffs comes traveling, and with traveling there is usually an increase in the use of charter buses for teams during this time. Here is a refresher on charter bus usage for West Virginia county boards of education.
October 31, 2011
Michael Gray discusses the administrative changes that have occurred since the Deepwater Horizon oil spill in 2010 and the tension that now exists between regulatory and business concerns regarding the issuance of oil drilling permits.
October 21, 2011
The Class Action Fairness Act (CAFA) was enacted in 2005 to assure fair and prompt recoveries for class members with legitimate claims, to restore the intent of the framers of the United States Constitution by legislating federal court consideration of interstate cases of national importance under diversity jurisdiction, and to benefit society by encouraging innovation and lowering consumer prices. Pub. L. No. 109-2, 119 Stat. 4 (2005).
October 18, 2011
To date, much of the regulatory focus for oil and gas activities – the subject of increased media attention because of the shale resources in Pennsylvania, West Virginia and Ohio – has been on water concerns. That focus has broadened significantly to include air issues.
October 17, 2011
It is essential for employers to develop a social networking policy, especially in light of the many legal issues that may arise. Employers must consider the many goals that the policy intends to cover.
October 17, 2011
In recent years, there has been an explosion in the use of social networking technologies. While these technologies represent tremendous opportunities for employers, they also contain the potential for legal pitfalls. It is important for employers and their counsel to understand the benefits, disadvantages and legal issues that can arise when using social media.
October 12, 2011
Whether it is to limit liability, reduce costs, or simply to condense operations, there are numerous reasons why organizations may prefer to treat individuals as independent contractors rather than employees. Indeed, with limited exceptions, organizations are not responsible for paying taxes, providing workers’ compensation, unemployment insurance or any employment benefits to independent contractors and can avoid liability for their negligent or wrongful acts. Nonetheless, the devil is always in the details when it comes to misclassification, and organizations who believe they are using independent contractors may actually have employees.
October 10, 2011
Does LEED-certification necessarily correlate to building energy savings? That is the crux of a lawsuit filed by Henry Gifford (along with an architect, engineer, and consultant) against the United States Green Building Council (USGBC), currently pending in the Southern District of New York (Case No. 1:10-CV-07747). If Mr. Gifford can show that LEED over-promised and under-performed in relation to energy savings, do designers, builders, and sellers in the green industry run the risk of liability for engaging in false advertising, deceptive practices, or other similar allegations?
October 7, 2011
On October 5, 2011 the NLRB announced it was delaying the mandatory posting of “Employee Rights” at the workplace of all employers within the jurisdiction of the National Labor Relations Act. Citing a need for “enhanced education and outreach to employers, particularly those who operate small and medium sized businesses”, the three-person Board extended the posting requirement from November 14, 2011 to January 31, 2012.
October 7, 2011
Here are some helpful tips for one of the most important, yet disliked, requirements for many attorneys working in firms -- keeping track of one’s billable time.
October 6, 2011
Insurers and policyholders alike are often presented with the question of whether an insurance policy’s limitation of action clause is enforceable. Many policies contain such clauses, which attempt to shorten the time permitted under law (currently 15 years in Ohio) for an insured to sue under the policy. In a pair of decisions issued in August and September 2011, the Supreme Court of Ohio answered this question with a resounding “yes,” turning back two challenges to the enforceability of such clauses.
October 5, 2011
This article was written to help independent filmmakers, television producers, music publishers, and songwriters understand and navigate the convoluted and often perilous world of copyrightable interests in music and the requisite licenses needed to legally use music in various contexts, whether they be audio-visual (e.g., film, television, internet) or audio-only (e.g., CDs, digital downloads). Rights and licenses discussed include synchronization, videogram, mechanical, master use, and public performance. Each refers to a specific copyrightable interest in music and each requires its specific form of license in order to avoid claims of copyright infringement by the rights holder.
October 5, 2011
Consider the following hypothetical: After an employee files a lawsuit against her employer, the employer copies the contents of her workplace computer for possible use in defending the lawsuit, and provides copies to its outside counsel. Upon review, the employer’s counsel sees that some of the employee’s e-mails were to her counsel, and bear the legend “Attorney-Client Confidential Communication.”
October 3, 2011
Since September 11, 2001, the climate surrounding our nation’s safety has drastically changed. In an effort to promote United States foreign policy and national security goals, the Office of Foreign Assets Control (“OFAC”) has responded to the changing political environment. Although OFAC is not a recent development, the agency certainly operates with the present security sensitivities in mind.
October 2011
September 28, 2011
A common issue always arising among West Virginia county boards of education relates to the filling of coaching positions in public schools. For example, does a citizen (non-employee) receive a coaching position over a currently certified professional educator? Does a certified professional educator receive a coaching position over a substitute employee holding certification? Does a certified professional educator in the home county receive priority over a certified professional educator employed in an adjoining county? What is the impact of an employee who is on permit? Does a service personnel employee have any rights to be a coach?
September 16, 2011
The state of the economy, the recession and numerous but unsuccessful attempts to stimulate the economy are certainly the No. 1 topic each day in the national and local media. A similar sharp decline in the sales prices of Thoroughbreds beginning in earnest in 2009 has significantly impacted Kentucky's signature industry.
September 12, 2011
On August 22, 2011, the West Virginia Department of Environmental Protection (WVDEP) filed an Emergency Rule with the Secretary of State, entitled “Rules Governing Horizontal Well Development” (W.Va. CSR 35-8-1.1, et seq.). In approving it (and thus making it effective) on August 29, 2011, Secretary of State Natalie Tennant agreed that it was properly classified as an emergency rule because it was “necessary to prevent substantial harm to the public interest.”
September 12, 2011
On July 29, 2011, President Barack Obama, joined by major automakers Ford, General Motors, Chrysler, BMW, Honda, Hyundai, Jaguar/Land Rover, Kia, Mazda, Mitsubishi, Nissan, Toyota and Volvo - which together account for over 90 percent of all vehicles sold in the United States - announced new fuel efficiency standards aimed at improving fuel efficiency to 54.5 miles per gallon by 2025. The new plan calls for a five percent annual increase in fuel economy for cars and a 3.5 percent average annual increase for light trucks through 2021. After 2021, both cars and trucks would be subject to a five percent annual increase. The new standard is the follow-up to the 35.5 corporate fuel average being phased in through the 2016 model year. Currently, automakers average less than 30 miles a gallon.
September 8, 2011
In one of its most controversial decisions to date, the National Labor Relations Board (“NLRB”) has overturned 20 years of precedent and will now permit unions to organize a minority share of an employer’s workforce. As a result of this decision, organized labor will be able to establish footholds in businesses where the majority of the employees may not desire to be represented by a union.
September 7, 2011
Several key business tax breaks are set to expire at year end unless Congress acts. Businesses should be aware of these expiring tax provisions and should consult with their tax advisors to determine whether they should take action necessary to take advantage of these tax breaks and/or to plan for the effects of the expiration of others of which they have taken advantage in the past.
September 6, 2011
Among the millions of Americans who are out of work are a significant number of returning servicemen and women. There exist a variety of laws and regulations that protect military personnel jobs during service, on the one hand, and provide incentives to employers to recruit servicemembers, on the other hand. Specifically, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and the Family and Medical Leave Act (FMLA) are the principal laws preserving employment, while federal and state tax codes provide the economic incentives to add former servicemembers to the payroll.
September 3, 2011
September 2011
August 26, 2011
Maxwell Multer, an associate in Dinsmore’s Natural Resources Practice Group, recently wrote an article published in the Summer 2011 edition of the Securities Regulation Law Journal. The article examines the increasingly common phenomenon of “open market manipulation” and discusses how courts have analyzed allegations of open market manipulation within the framework of SEC Rule 10b-5 and the Federal Energy Regulatory Commission’s anti-manipulation rule. Maxwell ultimately argues that while the distinction between “open market” manipulations and “traditional” ones is valid as a matter of taxonomy, courts should treat all alleged manipulations within the same analytical framework.
August 26, 2011
Employers can now add GINA to the long list of acronyms, which started with OSHA back in the 1970s and now includes ADA, FMLA, HIPAA, and a host of rules and regulations whose acronyms have either been forgotten or have never been used. The newest version is known as the Genetic Information Non-Discrimination Act, and essentially prevents employers from inquiring into the family medical history of employees who have been injured on the job, even if those employees are alleging a substantial aggravation of a pre-existing condition or a psychological condition which could well be a part of the family history.
August 25, 2011
The National Labor Relations Board (NLRB) has finalized its administrative rule requiring all employers within its jurisdiction to post notices informing employees of their rights to join a union free of threats and intimidation by the employer. The advance notice of the finalized rule has been published on the internet and the anticipated publication date of the final rule in the Federal Register is August 30, 2011. The rule is scheduled to take effect 75 days after its publication in the Federal Register.
August 25, 2011
August 24, 2011
Over the years, the Autism Mentor classification seems to have caused some personnel headaches for administration. For example, there have been issues of how to determine the two years of working experience with autistic students. Carr v. Tucker County Bd. of Educ. There have been issues when a county needs to reduce the total number of aides, and an aide who is mutli-classified as Aide/Autism Mentor, is less senior than a regular aide, and the less senior aide is placed on reduction in force. Taylor v. Pocahontas County Bd. of Educ. The State Superintendent of Schools has issued interpretations on Autism Mentor personnel situations. And, the West Virginia Legislature has addressed a number of issues, including a provision that a county board may establish positions with itinerant status only within the aide and autism mentor classification categories and only when the job duties involve exceptional students.
August 23, 2011
Though will contest actions are rarely successful, they can be financially burdensome to the estate and non-contesting beneficiaries, and emotionally taxing for a decedent’s family. A will can be invalidated based on undue influence or duress exerted on the decedent, fraud, a decedent’s lack of capacity at the time the will is executed, or failure to follow the legal rules applicable to wills. Following are 10 strategies for defeating a will contest action or cutting it short in the early stages of litigation. 
August 19, 2011
On July 26, 2011 the NLRB found that union representatives may have a right to correspond with employees on their corporately purchased email accounts to solicit union activity. The Guard Publishing Co., d/b/a The Register-Guard, 375 NLRB No. 27 (2011).
August 18, 2011
While public awareness of the challenges facing businesses is heightened during times of economic turmoil, companies may face tumultuous business conditions at any time. It is imperative for a board of directors to understand its fiduciary obligations when evaluating potential opportunities that may be available when the company is in a distressed state.
August 16, 2011
Minimum green building standards promulgated by the International Code Council (ICC) and American Society of Heating, Refrigeration, Air-Conditioning Engineers (ASHRAE) may dramatically impact the U.S. construction and real estate markets. The primary goal of these standards is to articulate minimum code requirements for sustainable building practices. However, with the introduction of new rules always comes risk. More specifically, when these minimum criteria for green building practices are incorporated into building codes, architects, engineers, and builders will face increased litigation risk for green building.
August 12, 2011
Beware the valuation pitfalls involved with the purchase of an on-going business that owns real estate. A buyer can accidentally cause its real property taxes on the newly purchased property to increase dramatically if it fails to allocate values properly between personal property and real property. Fortunately, a few preventative measures can be taken at the closing to prevent an unnecessary real property tax increase and litigation.
August 11, 2011
Welcome to the inaugural issue of Dinsmore & Shohl's CAFA Connection, a quarterly firm e-publication reporting on recently decided cases addressing the Class Action Fairness Act ("CAFA"). Although CAFA was enacted in 2005, its provisions are the subject of ongoing review and interpretation. Our newsletter is designed to provide insight into CAFA's evolving body of case law.
August 9, 2011
In a case that produced a majority opinion, a concurring opinion and two separate dissenting opinions, Brown v. Entertainment Merchants Association, 564 U.S. ___ (2011) (slip op.), found the justices, as well as the parties, in agreement on one important issue: Video games, as a distinctive medium for the expression of ideas, fall within the ambit of the First Amendment “freedom of speech” clause.
August 9, 2011
The Boeing Company is being subjected to trial. However, what has not been discussed is the real motivation for the United States government to bring them to trial.
August 4, 2011
Often, one of the last clauses to be discussed by the parties to an international contract is the dispute resolution clause. While considerable attention is rightfully paid to the substantive clauses of a contract, parties often include a form arbitration clause instead of carefully drafting a clause that is tailored to the situation.
August 4, 2011
The People’s Republic of China has joined the growing number of nations to criminalize bribery of foreign officials through recent amendments to its Criminal Law, which took effect May 1, 2011. Though the PRC had already criminalized payment of bribes to Chinese governmental officials, the amendment represents the first time that the PRC has prohibited PRC residents and companies from paying bribes to foreign officials.
August 3, 2011
In 2010, organized labor condemned the bipartisan vote in the United States Senate that killed the Employee Free Choice Act. Employees, prematurely, celebrated the fact that their right to a secret ballot in elections determining union representation was secure. EFCA, or the "card check" bill, would have eliminated the sacred right of employees to participate in their union elections by secret ballot.
August 2011
July 29, 2011
The United States Estate Tax and the United States Generation-Skipping Transfer Tax became inapplicable for persons dying and generation-skipping transfers made after December 31, 2009 and before January 1, 2011.
July 29, 2011
If you do a Google search for the “qualities of effective teachers,” 4,920,000 results come up within 15 seconds. Obviously, the placement of the best possible educators in our public schools is important to virtually everyone, but determining how that can be accomplished has been, and continues to be, the subject of much debate and, in West Virginia, the subject of some fairly complex legislation.
July 28, 2011
On May 25, 2011, Securities and Exchange Commission (“SEC”) adopted final rules implementing the whistleblower provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). The final rules, which take effect on August 12, 2011, are amongst some of the most debated and controversial rules to be promulgated in the wake of the financial crisis.
July 22, 2011
If an employer engages in illegal discrimination when terminating an employee, that employer should pay compensatory damages related to that termination. Moreover, if the employer acted maliciously in conducting the termination, it could also face punitive damages. Should, however, an employer be subject to duplicative punitive damages? No, because that would be patently unfair.
July 20, 2011
Most of the news regarding the oil and gas activity in Pennsylvania and West Virginia, and now tapping into Ohio shale plays, has focused on water concerns. But regulators also are eyeing air impacts. New or revised air regulations affecting the oil and gas industry are looming on the horizon, while the impact of other recent issuances is still being played out.
July 19, 2011
The cycle of certain laws is all too familiar. A specific issue or need arises and gains national attention. Congress drafts a law with the best intentions of solving the problem. Experts and the public applaud the legislation for bringing significant change. Only years later does the country discover that there are additional consequences beyond what the drafters intended. The discovery of these new issues sends Congress back to the drawing board.
July 15, 2011
Before long, school will be back in session, and Friday nights will be spent attending high school football games. As we enter the gates at the games, a question that often comes to mind is how are the gate keepers/ticket takers paid? Can the high school athletic director just give the gate keeper/ticket taker $20.00 from the gate receipts? Can the principal issue a check from the school’s general account? Fortunately, many high schools are able to find volunteers and do not have to answer these questions. But even if a volunteer is found, such as a service personnel employee, can the high school allow such employees to volunteer for free?
July 14, 2011
Employers should take note of the recently-enacted federal Genetic Information Non-Discrimination Act of 2008, otherwise known as “GINA”. Effective January 10, 2011, Congress added yet another acronym to the long list of federal laws impacting today’s employers (OSHA, ADA, FMLA, ADEA, etc). This new law prohibits an employer from requesting an employee’s genetic information and that of his/her family. The Act applies to requests for medical records, independent medical examinations, and pre-employment health screenings.
July 11, 2011
“Dear Charity Leader, A review of our records and information from the Internal Revenue Service cause us to believe that your organization should be registered with our office. … However, we have no record of any filing.”
July 1, 2011
Although most would consider asbestos to be an old problem, limited to mainly the manufacturing and construction industries, asbestos has been incorporated into a myriad of products that had many and varied uses. Because asbestos was so pervasive, claims such as the one described below, occurring many years after the last occasions on which asbestos was used and arising from the use of sophisticated equipment in a laboratory, are still prevalent.
June 28, 2011
A recent landmark jury verdict out of the Central District of California significantly broadens the scope of the Foreign Corrupt Practices Act, making corporate compliance with the Act more essential now than ever before. The Department of Justice has taken notice of the decision, and now corporations must as well. After a month long trial in United States v. Lindsey Manufacturing, a jury deliberated for just a single day and found the manufacturing company and two of its executives guilty on all counts for their alleged roles in a scheme to pay bribes to Mexican government officials of a state-owned utility company.
June 24, 2011
On June 23, 2011 the Internal Revenue Service issued proposed regulations with regard to the definition of "performance-based compensation” under Section 162(m) of the Code. While these regulations only purport to clarify the existing rules, publicly held employers who take advantage of the performance-based compensation exception should pay careful attention to them.
June 24, 2011
If you and your company have ever been through a union election, you know the process usually takes around six weeks, whether you go through a hearing or not. In those six weeks, the employer lines up labor counsel or a labor consultant for advice so they do not commit unfair labor practices and they train your supervisors on what the employer can and cannot say under National Labor Relations Board (NLRB) case law. The employer then campaigns for about one month providing employees with any facts about collective bargaining or the union itself, facts which the union likely left out while collecting signatures for a union petition.
June 20, 2011
The Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 ("Affordable Care Act") requires that medicine or drugs (other than insulin) be prescribed to qualify for reimbursement under employer provided accident and health plans including a health flexible spending account, health reimbursement arrangement, and health savings accounts. Effective January 1, 2011, over-the-counter (OTC) drugs are no longer reimbursable without a prescription.
June 20, 2011
If state or federal authorities knocked on your door tomorrow, would you know how to prepare for, weather, and respond to a criminal investigation of your business? Today's increasingly regulated environment and the encouragement of whistleblowing has created an atmosphere of greater risk of exposure to a criminal investigation. Some industries are highly regulated, and even the most conscientious businesses are under constant scrutiny. In addition, competitors and former or disgruntled employees may present as great a risk to your company as do regulators.
June 17, 2011
Think beyond compliance. Providing the right information will enable smart operators to shape the message existing and potential investors receive under the new specialized SEC disclosure regime.
June 16, 2011
Just over a year ago, in the wake of the Deepwater Horizon accident, the future of offshore oil exploration looked bleak. With the nation fixated on video of crude oil spewing into the Gulf of Mexico, President Obama quickly instituted a six-month deepwater drilling moratorium. Obama lifted the moratorium last October; however, many claim that the moratorium has not gone away, but was replaced by a de facto moratorium, colorfully called the "permitorium" or "slowmatorium." While the Obama Administration no longer blocks all deepwater drilling permits, new permits are still rare.
June 15, 2011
As government agencies in the Commonwealth of Kentucky seek to engage an ever expanding group of contractors to perform government contracts, state procurements have become extremely competitive. In one recent, high-profile example, Kentucky is currently reviewing proposals from potential contractors to transition by July 1, 2011 its current Medicaid budget of more than $6 billion to a new Medicaid managed care system. Other state contracts, while smaller in scope and revenue, are no less valuable to contractors.
June 13, 2011
How do you know if a certain commercial property is energy efficient or inefficient? If the building is LEED-certified, what exactly does that mean with regard to the building's energy use and costs? These days, potential buyers (and the lenders behind them) seek to understand the relative energy efficiency of a building beyond the fact that an EPA Energy Star plaque is hanging in the lobby. A meaningful energy evaluation tool - like ASTM's Standard Practice for Building Energy Performance Assessment for a Building Involved in a Real Estate Transaction (E 2797-11) ("BEPA") - is useful in analyzing the energy consumption of a building. However, as energy disclosure laws ripen into fruition across the country, and building purchase agreements increasingly address the energy concerns of buyers, ASTM's BEPA could serve as a safe harbor from potential liability in the context of commercial real estate transactions.
June 9, 2011
The requirements for competency testing by county boards of education are set forth in West Virginia Code 18A-4-8e, which defines the purpose of the tests as “to provide county boards of education a uniform means of determining whether . . . employees who do not hold a classification title . . . meet the definition of the classification title.” An issue often arises as to whether a county board of education is required to provide competency testing to existing regularly employed service personnel outside of the classification vacancy when others who have previously tested and passed have also applied.
June 9, 2011
As many of you know, the Pension Protection Act of 2006 amended the Internal Revenue Code to require the automatic revocation of the exempt status of organizations that fail to file required information returns with the IRS for three consecutive years. The IRS has just announced the first of these revocations, about 275,000 in all, covering the tax years of 2007, 2008, and 2009.
June 7, 2011
Employers may wish to use surveillance in the workplace for a variety of beneficial reasons, including employee safety, prevention of theft, supervision of employees, and reducing the potential for liability. There are, of course, negative aspects of surveillance as well. Employees may feel like they are constantly being watched, that the employer does not trust them, and that the surveillance invades their personal lives. This may lead to feelings of resentment and increased stress. Moreover, electronic surveillance should not be used as a substitute for monitoring by management. Rather, technology should be used as a supplement to good old-fashioned supervising.
June 7, 2011
The protests in Egypt, earthquake in New Zealand, and disaster in Japan have again emphasized the need for contracting parties to anticipate that events beyond their control may affect their ability to perform. For most parties, a well-drafted force majeure clause will be adequate protection.
June 3, 2011
On May 12, 2011, the U.S. Council for International Business announced that Mexico would begin accepting ATA Carnets, the so-called “merchandise passports” now accepted in eighty countries and customs territories. With the expansion of the system to the United States’ second largest export market and recent expansion of the system in Latin America, this is a good time for exporters to recall what benefits ATA Carnets do and do not provide.
June 3, 2011
US and UK technology license agreements are fundamentally similar to each other. UK licensors should take heed, though, because there are nuances that, if not addressed, can create problems - sometimes small and sometimes large - when you come across the pond to sell your wares. The following is intended to provide you with a general guide to those nuances.
June 3, 2011
Much has been written about the U.K. Bribery Act, which will take effect on July 1, 2011. And indeed, the scope and breadth of the Act justify careful review of the Act and the Guidance produced by the Ministry of Justice.
June 3, 2011
A 2004 study by Bain & Company found that 70% of mergers failed to increase shareholder value. A 2007 study by the Hay Group found that more than 90% of mergers in Europe fail to reach financial goals. Regardless of the risks, companies continue use to mergers and acquisitions as a means to expand and diversify their holdings. In 2006, the annual value of global mergers and acquisitions exceeded US$ 4 trillion and international mergers alone accounted for US$ 1.3 trillion.
June 3, 2011
Enacted in 1977, the FCPA prohibits bribes to foreign officials with the intent to obtain or retain business. The two main parts of the FCPA are anti-bribery and accounting provisions. Ultimately, the basis for any FCPA prosecution turns on the actions of a company's employee(s). Now more than ever it is important for human resources professionals to become vigilant partners in FCPA compliance. The provisions of the act are stringent and require strict adherence. Moreover, the whistleblower provision of the Dodd-Frank Act of 2010 provide financial incentives for employees to report FCPA violations and protection against retaliation for those that do. Importantly, employees providing "original" information to the government can be considered as participating in protected conduct.
June 2011
May 27, 2011
Yet again, climate law watchers – those who want greenhouse gas (“GHG”) emissions further reduced, as well as those who would be most affected by additional air regulations – are holding their breath, waiting for the Supreme Court to issue its decree. Four years ago, such watchers waited with bated breath as the high court considered the issue of whether GHG emissions from vehicles could be regulated under the Clean Air Act.
May 24, 2011
With last November’s changes in state politics across the country, and with the recent push for state and local governments to tighten their budgets, it is not surprising that prevailing wage laws are suddenly on lawmakers’ radar screens. While it would be impossible to predict the extent to which prevailing laws will change—or whether they will even survive at all—two conclusions are virtually certain: the laws governing the payment of wages on public projects will change, and that change will benefit owners and contractors.
May 24, 2011
The Patient Protection and Affordable Care Act, as modified by the Health Care and Education Reconciliation Act of 2010 (PPACA) changed the Medicare Part D annual coordinated election and enrollment period to October 15th - December 7th beginning with the 2012 plan year. Thus, notices of creditable and non-creditable coverage to Medicare Part D eligible individuals must now be made prior to October 15, 2011 and prior to October 15th for each subsequent plan year.
May 24, 2011
Most companies have an “open door” policy that encourages employees to discuss questions or concerns with their supervisor or department manager. Open door meetings are often treated as informal discussions to let employees “vent.” If an employee stopped by his supervisor’s office and complained about the location of the time clock, most companies have no procedure for documenting that conversation, initiating an investigation, or recording resolution of the issue. In fact, most companies would not realize that the employee had just engaged in conduct protected by the federal law governing wages, the Fair Labor Standards Act. A recent United States Supreme Court decision, Kasten v. Saint-Gobain Performance Plastics Corp., shows that these informal discussions can have serious legal repercussions.
May 23, 2011
With last November’s changes in state politics across the country, and with the recent push for state and local governments to tighten their budgets, it is not surprising that prevailing wage laws are suddenly on lawmakers’ radar screens. While it would be impossible to predict the extent to which prevailing laws will change—or whether they will even survive at all—two conclusions are virtually certain: the laws governing the payment of wages on public projects will change, and that change will benefit owners and contractors.
May 22, 2011
The law of contracts has been developing since Adam and Eve made a deal to keep away from the apple tree in exchange for a rent-free stay in the Garden of Eden. Over the years, the rules of how and when contracts can be enforced have become more complicated, but contract law is not quantum physics, and, for most of you, it is probably far easier to grasp these basic rules than it is to figure out how to make your employees always show up on time or how to keep up with all the most recent software.
May 20, 2011
Make no mistake: one thing has become increasingly evident from recent press releases and headlines regarding settlements for violations of the Foreign Corrupt Practices Act1—we are in a new era of enforcement.
May 13, 2011
The Foreign Corrupt Practices Act of 1977 (FCPA) was passed in response to federal investigations of American companies that collectively were making millions of dollars in bribes to various foreign government officials.
May 12, 2011
In the past few years, there has been an explosion in the use of social networking technologies. While these technologies represent tremendous opportunities for employers, they also contain the potential for various legal pitfalls. It is important for employers and their counsel to understand the benefits of social media, such as using it for recruiting; the disadvantages, such as lost productivity; as well as the legal issues that can arise when using social media. The following sections will provide: (1) an overview of the most popular social networking sites and technologies; (2) a look at their use in the workplace; (3) a discussion of the potential legal issues employers face when utilizing these tools; (4) a look at recent cases before the U.S. Supreme Court and the NLRB; and (5) suggestions for implementation of an appropriate social networking policy.
May 11, 2011
On May 5, 2011, the Ohio House of Representatives passed H.B. 153, Ohio’s main operating budget for fiscal years 2012 and 2013. The current bill contains some key provisions affecting the public construction industry in the areas of prevailing wage law and alternative delivery methods.
May 9, 2011
The economic and non-economic business justifications for reviewing your company's employment practices are plentiful. Litigation for employment and labor based claims subject the corporate treasury to the risk of paying damages, including punitive damages and substantial attorney fees for both the employee's and the company's counsel.
May 2011
One of the central elements of any license agreement is the duration of its term. Since each side to a negotiation seeks to minimize its risk, the greater the uncertainty that is involved in a license, the more difficult the negotiation of its term likely will be. Depending upon whether the property is a new introduction or an established evergreen, the parties may disagree whether the term should be brief or lengthy, fixed or subject to extension or reduction, and if the latter on what basis.
April 28, 2011
President Obama Dec. 17, 2010, signed into law the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the “2010 Tax Relief Act” or “Act”; Pub. L. No. 111- 312); this legislation, inter alia, extends for two years the Bush-era income tax cuts, retains for two years favorable tax rates for long-term capital gains and qualified dividends, provides significant estate and gift tax relief, and includes a two-year alternative minimum tax patch.
April 27, 2011
We’ve all heard that adage, “An ounce of prevention is worth a pound of cure.” When it comes to corporate governance, compliance, and ethics programs, this could never be more true. The current government budget crisis has legislators scrambling to find dollars. Since much of the government’s budget is fixed, e.g. entitlement programs, the push is on to cut discretionary spending. Another avenue for “saving” taxpayer dollars is to ferret out “fraud, waste, and abuse”. The rationale for ratcheting up enforcement actions for fraud and regulatory violations is simple. It brings in dollars. The current climate for stricter enforcement and more severe punishment for white collar crime, especially as it affects federal programs, is made evident in recent hearings held by the Senate Judiciary Committee. The opening remarks of Chairman Leahy are an example.
April 19, 2011
When introduced to someone new, he or she invariably asks what kind of law I practice. "Corporate work primarily — acquisitions, work-outs, representation of creditors and debtors in Chapter 11 bankruptcies," I say, and that's when it happens. Everyone unconsciously takes a half step back as though bankruptcy is somehow contagious.
April 19, 2011
As you may have read, the 2011 budget "deal" includes a section (§1858 of H.R. 1473, Department of Defense and Full-Year Continuing Appropriations Act, 2011) that repeals the Affordable Care Act's "free choice voucher" requirement for certain employer-sponsored group health plans. (The vouchers were scheduled to be available beginning January 1, 2014.) 
April 8, 2011
Yesterday, two members of the Ohio General Assembly introduced a bill to create the Ohio False Claims Act. The bill’s sponsors, Senator Jim Hughes (R-Columbus) and Senator Scott Oelslager (R-North Canton), noted that the bill is a tool to recover fraudulent funds and stop waste, fraud, and abuse of Ohio’s financial resources. The bill carries the full support of Ohio Attorney General Mike DeWine. In a press conference yesterday, Attorney General DeWine said, “We have to get Medicaid fraud under control. There is absolutely no reason why Ohio should not have a False Claims Act.”
April 5, 2011
The Ohio Department of Taxation (ODT) recently announced an amnesty-like program that can result in substantial savings for taxpayers that have undisclosed Ohio use tax liability. The Ohio use tax is a complement to the Ohio sales tax, and is a tax on the storage, use or other consumption of tangible personal property and certain taxable services in Ohio. It generally arises when a seller fails to collect sales tax on the sale of certain purchased personal property and services which are used in Ohio. Common examples include the purchase of property to be used in Ohio from an online vendor, a catalog company, or an out-of-state seller with minimum contacts to Ohio.
April 4, 2011
The ADA Amendments Act of 2008 (ADAAA) required the Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations. The final regulations were just published on March 25, 2011, and are effective May 24, 2011. There is no doubt that the Act and final regulations offer protection to a much broader group of individuals which employers may not have previously considered to be disabled. Employers need to be more alert than ever about whether an employee's work restrictions, off-hand or other indirect comments trigger the ADAAA and should also become familiar with which conditions are now considered disabilities for which an accommodation may need to be provided.
April 1, 2011
April 1, 2011
We all know that a business organization can be held criminally responsible for the misdeeds of its officers, employees, and agents. Did you know that in some instances, the converse can also be true? The FDCA provides a good example. Title 21 United States Code, Section 331, prohibits introducing adulterated or misbranded products into the stream of commerce. First offenses under this statute are misdemeanors. Subsequent convictions can become felonies.
April 1, 2011
The identification and production of electronically stored information (“ESI”) is now part of the everyday landscape of both civil and criminal litigation. In some cases, ESI is printed and provided in paper format to opposing counsel. But as the volume of ESI continues to grow, so does the burden of production. Some surveys indicate that as much as 93% of all business records are stored electronically, and of that amount, less than 30% are ever printed to paper. The average worker receives approximately 55 e-mails every day. For a small business of 100 employees, this translates into approximately 1,375,000 e-mails annually.
April 1, 2011
Bringing up arbitration at a cocktail party is more likely to provoke yawns than excitement, even when one is in the company of fellow members of the bar. But as most every litigator is aware, arbitration issues have become nearly ubiquitous in litigating everything from commercial breach-of-contract disputes to employment-discrimination claims. In many cases, whether claims are subject to an arbitration agreement may be a “make or break” issue – one that can determine whether a lawsuit is worth bringing, whether or when a defendant should settle a case, or whether a particular defendant or cause of action should be included in a complaint.
March 29, 2011
U.S. citizens and companies that contract with foreign entities should, of course, be aware of and always cognizant of the Foreign Corrupt Practices Act. Dinsmore & Shohl's D. Michael Crites has previously provided a general background to the FCPA here and D&S encourages any individual or entity that does business internationally to familiarize themselves with the requirements of the FCPA.
March 29, 2011
Leading diverse companies through the consideration and implementation of Joint Ventures in the U.S. and numerous foreign jurisdictions provides a short list of Key Issues that a client must consider.
March 29, 2011
Incoterms 2010 have now been effective for nearly three months, and contracting parties should be familiarizing themselves with the changes that were made from the 2000 to the 2010 version. While some of those changes are seemingly minor (such as the reorganization of the Incoterms rules into two categories according to the mode of transport used instead of by initial letter), others are more substantial. To assist those parties, Dinsmore & Shohl has identified five areas where the changes to the rules have been important to its clients.
March 25, 2011
Employers awaited with curiosity last year as the U.S. Supreme Court considered the case of City of Ontario, California v. Quon, where the employer terminated an employee for transmitting sexually-explicit text messages on an employer-owned pager. The employer paid for the pager’s service plan, but the employee reimbursed the employer for his personal use of the pager beyond the allotted minutes of the plan. When the employer performed an audit of pager use, to see if the service plan needed changed, it discovered the explicit messages and terminated the employee.
March 2011
March 21, 2011
Richard Porotsky authored the most recent title from the Ohio State Bar Association CLE Publications; "Ohio Insurance Law: Policy Analysis, Bad Faith Issues and Ethical Conflicts."
March 18, 2011
"It's not personal, it's just business." Whoever invented this oft-repeated cliché must not have worked for a family business. In fact, when owners or employees of a business are part of the same family, conflict resolution is almost always personal. As a result, many family business disputes can prove to be extremely difficult to resolve short of expensive litigation.
March 15, 2011
Recently, the EEOC held an open meeting to “examine treatment of unemployed job seekers.” During the meeting, several witnesses presented testimony on what some view as a growing problem in the current economy – discrimination against the jobless. The impetus for the meeting started as early as May of 2010, when employment organizations first noticed job postings that explicitly discriminated against the unemployed. These postings ranged from requirements that the person have been employed in the last six months to specific announcements that “no unemployed candidates will be considered at all.”
March 15, 2011
House Bill 3225 was approved by both the House and the Senate, and is awaiting the Governor’s signature. If signed by the Governor, which is expected, each county board of education is required to update their Bullying, Harassment and Intimidation Policy.1 The Bill amends both West Virginia Code §§ 18A-2C-2 and 18A-2C-3, and West Virginia State Board of Education Policy 4373 (Student Code of Conduct).
March 10, 2011
On Friday, March 11, 2011, the Consumer Product Safety Commission (the “CPSC”) expects to formally launch a searchable, publicly available consumer product safety information database (the “Database”). Located at http://www.SaferProducts.gov, the Database allows consumers and organizations to view and submit reports for any harm or risk of harm occurring with the use of any consumer product marketed in the United States.
March 2, 2011
On December 30, 2010, the Ohio Supreme Court issued a significant decision which clarified the ever-changing law on coverage for intentional acts. In a key part of the ruling, the Court emphasized the importance of the doctrine of inferred intent, defining when it should apply to preclude coverage. Commenting on prior key cases, the Court explained that the doctrine is not limited to cases of sexual molestation or homicide.
March 2, 2011
On January 24, 2011, the Supreme Court of the United States issued a unanimous (8-0, Justice Kagan recused herself) decision in Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011) that expanded the provisions of Title VII retaliation. In Thompson, the Supreme Court ruled that Title VII prohibits third party retaliation. Specifically, the Court found that the employer violated Title VII by terminating an employee after his fiancée had filed a charge with the Equal Employment Opportunity Commission ("EEOC"). After Thompson, employers now must contend with a different type of retaliation, one brought by an employee who claims he or she was retaliated against because of a "relationship" he or she had with a co-worker who engaged in protected activity, but not because he or she engaged in protected activity.
February 28, 2011
On Friday, a Columbus Dispatch editorial endorsed the creation of Ohio’s own False Claims Act by state lawmakers. The issue gained attention after the recent federal settlement by CareSource, a Dayton-based managed health care organization. CareSource paid $26 million to settle a case brought by two whistleblowers under the federal False Claims Act. Of the total settlement amount, Ohio will receive $10 million. But the Columbus Dispatch editorial points out that Ohio would have received an additional ten percent if an Ohio False Claims Act had been in place.
February 23, 2011
In 2005, CAFA was enacted to assure fair and prompt recoveries for class members with legitimate claims, restore the intent of the framers of the United States Constitution by providing for Federal court consideration of interstate cases of national importance under diversity jurisdiction, and benefit society by encouraging innovation and lowering consumer prices.
February 23, 2011
We would all agree that interaction with the federal government and its regulatory agencies has become increasingly complex. Nowhere is this more evident than in the area of organizational liability for the misdeeds of corporate officers, agents, and employees. Business organizations are more frequently being held criminally responsible for the misconduct of those who act under their authority.
February 22, 2011
Elections, we have been told, have consequences. In the area of coal mine permitting, this apparently includes the dismantling of settled administrative law as a part of an effort to severely reduce the size of the Appalachian coal industry.
February 18, 2011
We generally view things from 50 feet and focus on the small things that are happening from day to day. Every now and then, we need to step back, view things from 10,000 feet, and focus on the big picture. Here is a view from 10,000 feet of some of the big picture issues for hospitals in West Virginia.
February 18, 2011
The Federal Communications Commission (“FCC”) has unanimously adopted a Notice of Proposed Rulemaking (“NPRM”) regarding plans to reform and modernize the Universal Service Fund (“USF”) and Intercarrier Compensation (“ICC”) regime.
February 16, 2011
On February 10, 2011, ASTM formally published its Building Energy Performance Assessment (BEPA) Standard - E 2797-11. This standard will enable users to measure the energy performance of a commercial building in connection with a real estate transaction.
February 11, 2011
In a recent case, a Dayton-based managed health care organization, CareSource, agreed to pay $26 million to settle claims alleging CareSource defrauded the federal government. Two former employees brought whistleblower actions in 2006 accusing CareSource of failing to provide required services under the Medicaid program and submitting false claims requesting reimbursement from the federal government for unrendered services.
February 8, 2011
In this BNA Insights article, attorney Anitra Walden-Jacobs focuses on Title II of the Genetic Information Nondiscrimination Act, signed into law May 21, 2008, by President George W. Bush.
February 4, 2011
E-Verify is an Internet-based database operated by the federal government that allows participating employers to electronically verify the employment eligibility or work authorization of their newly hired employees, regardless of whether their new hires are U.S. citizens or foreign nationals.
February 4, 2011
A recent decision by the Kentucky Supreme Court affirms prior decisions relating to surface rights granted under severance deeds and rejects the effort to restrict a coal company’s exercise of such surface rights.
February 4, 2011
Coal mining, and related industries that consume coal, have attracted quite a bit of attention from the federal government as of late. Most of that attention has focused on how to further, or "better," regulate the industry.
February 4, 2011
Every year, scores — if not hundreds — of cases are filed in Kentucky courts asserting claims involving construction projects. As players on the construction team, civil, structural and mechanical engineers face significant potential liability when a project goes bad. Such liability can easily exceed the fee earned for a given job, and any firm's long-term business success depends on understanding and managing the risks.
February 2, 2011
On January 26th, the Senate Judiciary Committee addressed fraud enforcement in their first hearing of the new Congressional session. In this most recent hearing, the Judiciary Committee placed special emphasis on health care fraud.
February 1, 2011
February 2011
Many times a request for exclusive rights will receive the above response. In the next breath, the licensor may express the following: “. . . , but we never double-license.” This apparent contradiction might mean that the licensor simply wants to keep its options open in case the property which is subject to this agreement takes off and your competitors want to get in on the action. If you have been in this business for any length of time (or, really, in any business) you already know that you can’t rely on expressions of good intentions. Only the written word in your agreement should give you comfort.
February 1, 2011
February 1, 2011
Already this year, many of Boards of Education in West Virginia have been faced with a number of school cancelations and delays as a result of inclement weather. A common question from school administrators is: What discretion does a Board of Education have in issuing alternative work schedules on snow days?
January 31, 2011
U.S. Citizenship and Immigration Services (USCIS) announced last week that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. The final date on which USCIS accepted new H-1B case was January 26, 2011.
January 28, 2011
The rules have been modified that "creditor" no longer includes any business that extends credit or permits payment plans for fees incident to its services. Because healthcare providers are no longer "creditors" under this law, healthcare providers no longer need to comply with the Red Flags Rule.
January 25, 2011
Lenders are making loans again. Lenders are much more cautious about the loans they are making and much more thorough with their due diligence on every piece of property. Perhaps the biggest concern for a lender (aside from whether its borrower will default) is the environmental condition of the property.
January 13, 2011
With thousands of kids spending countless hours texting on their phones and frolicking on the virtual playground created by Facebook and other social media sites, it was inevitable that the same bad behaviors affecting the real world would carry over into cyberspace.
January 5, 2011
In preparation for the 2011 proxy season, there are a number of new developments companies must take into account when drafting proxy statements and annual reports in the wake of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the release of proposed rules by the Securities and Exchange Commission.
January 1, 2011
April 2011
Much like the casino industry, horse racing experienced declines in all relevant measurables, including wagering (7.3%), attendance, purses (6%), racing dates (7.7%) and significant declines in total revenue from bloodstock sales in 2010 repeating downward trends that began in earnest in 2007 . As a result, racing states and racetracks continue to look for ways to reverse this trend and numerous states are evaluating expanded gaming in light of the continuing weak economy and substantial state budget shortfalls.
January 1, 2011
2011
Winter 2011
December 30, 2010
On November 18, 2010, the Food and Drug Administration (FDA) issued Warning Letters to Phusion Projects, LLC (Phusion), United Brands Company, Inc. (United), Charge Beverages Corporation (Charge), and New Century Brewing Company, LLC (New Century Brewing), alerting the companies that their pre-packaged caffeinated alcoholic products are adulterated beverages in violation of § 402(a)(2)(C) of the Federal Food Drug and Cosmetic Act (the Act).
December 29, 2010
The National Labor Relations Board ("NLRB") has issued a Notice of Proposed Rulemaking that would require all Employers subject to the National Labor Relations Act to post "Notices" physically and electronically.
December 29, 2010
Public school districts regularly receive medical information concerning its students and employees. Inevitably, questions arise about what medical information the school district can request or share with staff, parents and other affected individuals. This article is meant to answer some of these questions.
December 29, 2010
On December 22, 2010, U.S. Citizenship and Immigration Services (USCIS) announced that employers will not be required to complete Part 6 of the Form I-129 Petition for Nonimmigrant Worker form containing export control/ITAR compliance questions, until February 20, 2011.
December 21, 2010
With this year fast coming to a close, there may be notices, plan amendments and/or administrative changes that should be completed as the new year approaches.
December 20, 2010
On December 17, 2010, the President signed into law the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the "2010 Tax Act") (H.R. 4853). The 2010 Tax Act extends the Bush-era federal income tax cuts for all taxpayers for two years, provides a two-year AMT patch for middle income taxpayers, implements a one-year payroll tax reduction, extends certain business tax incentives, and provides significant, albeit temporary, estate, generation skipping and gift tax relief.
December 17, 2010
Even the smallest of West Virginia employers must be aware of the various labor and employment law issues that affect them. Some workplace laws only apply to employers of a certain size, while others apply to all employers, regardless of size.
December 16, 2010
On December 15, 2010, President Obama signed into law the Medicare and Medicaid Extenders Act of 2010, which halts the implementation of proposed cuts to physician reimbursement for a period of one year. For some time, federal lawmakers have struggled to deal with the potential impact of the often criticized Medicare Sustainable Growth Rate (“SGR”) formula.
December 15, 2010
On December 13, 2010, Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia held that a key portion of the Patient Protection and Affordable Care Act ("PPACA"), passed by Congress in late 2009 and signed into law by President Obama on March 23, 2010, was unconstitutional.
December 10, 2010
Is your company not large enough to capture the entire global market for your innovative products? Do your proprietary processes have applications outside of your area of expertise?
December 10, 2010
Two major legal and technological changes that have taken place in the past several years are now colliding. First, with the rise of social networking and other trends, governments at every level are passing tougher laws that protect the privacy and security of personal data.
December 9, 2010
December 7, 2010
On November 8, 2010, the U.S. Court of Appeals for the Fourth Circuit issued its decision in West Virginia Highlands Conservancy, et al. v. Huffman (Appeal No. 09-1474). It's an opinion that should be of great interest to government agencies and others who find themselves in a position of seeking to remediate water quality problems left by third parties.
December 2, 2010
Recently, INZ Distributors, Inc./Magic Power Coffee, Inc (Magic Power) came under FDA scrutiny for the marketing of its Magic Power Coffee product, a product available only through online sales. The company claims its product is a "100% natural" dietary supplement that can enhance sexual performance.
December, 2010
December 1, 2010
West Virginia Board of Education Policy 4350 provides legal guidance on the issues of the collection, maintenance, and disclosure of student data ("Policy 4350"). Most, if not all, West Virginia county boards of education have a policy in place that mirrors Policy 4350. Policy 4350, among other things, sets "forth the conditions governing the protection of privacy and access of parents and students as it relates to the collection, maintenance, disclosure and destruction of educational records by agencies and institutions under the general supervision of the West Virginia Board of Education."
December 2010
November/December 2010
November 30, 2010
Soon, the Department of Homeland Security (DHS) will announce the creation of an I-9 Audit Fusion Center. This center will be staffed by approximately 20 forensic auditors who will assist local DHS offices executing I-9 audits for large employers. With the creation of this new center, employers can expect DHS to ramp up enforcement and conduct I-9 audits of larger employers.
November 26, 2010
Environmental laws affect a company’s business operations at nearly every level. Following the 2010 election, most pundits agree that change is in the air. In Ohio, will that change extend to environmental regulation?
November 26, 2010
Environmental laws affect a company’s business operations at nearly every level. Following the 2010 election, most pundits agree that change is in the air. In Ohio, will that change extend to environmental regulation? Will it have a positive impact on Ohio businesses?
November 12, 2010
In the wake of the largest financial crises in the nation’s history, everyone is looking to the person next to them, with a knowing look, as we discuss exactly what happened. Certainly, recovery is the desired result with basic elements of a lower unemployment rate and increased consumer confidence. The disagreement, however, is how to achieve the ultimate goal of a stable and prosperous economy.
November 11, 2010
The National Labor Relations Board’s Hartford, Connecticut office recently issued an unfair labor practice complaint against an employer after the employer fired an employee who posted derogatory comments regarding her supervisor on the employee’s personal Facebook page.
November 9, 2010
Nearly five decades after passage of the Equal Pay Act, supporters are seeking passage of the Paycheck Fairness Act, a sweeping measure that would substantially increase the ability of workers and the government alike to assume
roles in determining and policing employee compensation, Dinsmore & Shohl attorney William Robinson writes in this BNA Insights article.
November 9, 2010
The new health reform law gives a tax credit to eligible small employers that provide health care coverage to their employees, effective with tax years beginning in 2010. In order to qualify as a small employer eligible for the tax credit
November 9, 2010
In addition to expanding lending to small businesses, the Small Business Jobs Act ("SBJA"), effective September 27, 2010, also includes several tax provisions which aim to encourage investment, promote entrepreneurship and provide small business relief.
November 1, 2010
Natural gas producers, engine manufacturers, and other industry groups have launched an assault on the U.S. EPA's recent rule requiring operators of existing stationary natural gas-fired engines to control emissions of certain hazardous air pollutants. Among other assertions, they claim that this latest rulemaking imposes requirements on small engines that cannot be practically implemented, and that EPA's cost-benefit analysis was substantially flawed, leading to unreasonably low emission limits.
November 1, 2010
November 1, 2010
November 1, 2010
West Virginia Code 6-9A-3 of the Open Governmental Proceedings Act provides that “governing bodies” such as a county board of education shall promulgate rules by which the date, time, place and agenda of all regularly scheduled meetings and the date, time, place and purpose of all special meetings are made available. The meetings are to be made in advance to the public and news media, except in the event of an emergency requiring immediate official action.
October 31, 2010
Within the U.S. Department of State (DOS) is the Visa Control and Reporting Division that is responsible for the movement of immigrant visa cut-off dates each month and for releasing DOS’ monthly Visa Bulletin. The Visa Bulletin and the cutoff dates that are reflected in the Visa Bulletin regulate the availability of Immigrant Visas or “green cards” for immigrants in the family-sponsored or employment-based preference categories.
October 27, 2010
A recent case decided in Illinois has determined that athletic trainers in Illinois may be held personally liable for negligence claims brought against them, despite the fact that they are employed by state-funded institutions. In Sellers v. Rudert, 918 N.E.2d 586 (Ill. App. Ct. 2009), the Appellate Court of Illinois for the Fourth District found that athletic trainers at Eastern Illinois University were subject to a duty of care established by the Illinois Athletic Trainers Practice Act.
October 26, 2010
On August 25, 2010, the Ohio Supreme Court held that a corporation engaged in the unauthorized practice of law by preparing, signing, filing and pursuing affidavits of mechanics’ lien for third parties. In Ohio State Bar Association. v. Lienguard, Inc., 2010-Ohio-3827, the Court found that Lienguard, Inc. provided legal services without a license to do so by furnishing mechanics’ lien related assistance for customers.
October 22, 2010
An emerging case out of South Carolina may have a far-reaching impact on health care providers across the country. Health care providers have long been aware of the penalties for violating the Stark Law, only now violating the Stark Law may also bring False Claims Act charges and additional penalties that include treble damages.
October 15, 2010
It has been said that the only certain things in life are death and taxes. Upon one’s death, all the property and various things that one accumulates during their life must be passed to others. An Executor is the person chosen by the decedent in a Will to handle this transition. If a person dies intestate, that is, without a Will, then the personal representative will be called an Administrator. For purposes of this article, we will refer to either an Executor or Administrator as the Executor of an estate.
October 6, 2010
On August 18, 2010 the United States Court of Appeals for the Second Circuit addressed the issue of corporate affiliate conflicts of interest. This is an issue that frequently challenges lawyers considering whether they can represent a client who is adverse to a corporate affiliate of another client that they or their firms represent.
October 5, 2010
October 5, 2010
In 2008, the West Virginia Supreme Court refused to hear appeals in the Tawney and Wheeling Pitt cases, cases that garnered national headlines as two of the five largest jury verdicts in the United States that year.  The Court's refusal to consider these appeals without any explanation shocked many, and it highlights the fact that...
October 2010
October 1, 2010
October 2010
October 1, 2010
October 2010
September 30, 2010
September 29, 2010
Each year the U.S. Department of State ("DOS") runs a lottery program that encourages "seed" immigration from countries that have been under-represented in recent immigration trends. U.S. immigration law makes 55,000 Diversity Visas (DV) available each fiscal year to persons from countries with historically low rates of immigration to the United States.
September 27, 2010
When President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank" or the "Act") into law on July 21, 2010, it was a major step towards the administration's goal of promoting increased accountability and transparency in the United States' financial system.
September 20, 2010
In recent years, hand-held communication devices have gone from a convenience to a necessity. As these devices have become more affordable and sophisticated, users have enjoyed the ability to communicate via text message and email from virtually anywhere. Among professionals, the use of hand-held communication devices has become the norm.
September 20, 2010
In 2008, the West Virginia Supreme Court refused to hear appeals in the Tawney and Wheeling Pitts cases. Those two cases involved awards exceeding a half a billion dollars collectively and represented two of the five largest judgments in the United States that year. This action by the Court, which was taken without explanation, shocked many. It also highlighted the fact that, unlike virtually every other state, there is no automatic right to have a judgment in a civil or criminal case substantively reviewed by an appellate court in West Virginia.
September 13, 2010
September 10, 2010
The rapid growth of natural gas exploration and production in the Marcellus Shale areas of New York, Pennsylvania, and West Virginia has led to considerable focus on the implications of such activities on water resources. Concerns about the withdrawal of large quantities of water used for drilling, chemicals used in that process, and the disposal of produced water from Marcellus Shale wells have prompted a number of state regulatory proposals, as well as an ongoing study by the U.S. Environmental Protection Agency ("EPA") on hydraulic fracturing.
September 9, 2010
As a labor and employment lawyer representing employers for now over thirty years, I have always been focused on the proactive and preventative steps employers can and should take to avoid claims and liability. Despite these efforts it seems we lawyers end up doing more damage control. Through this damage control many lessons are learned. With each matter I've always made an effort with clients during the course of the case and certainly at the end to talk about lessons learned.
September 9, 2010
In recent weeks, questions have arisen regarding what a municipality may do when a convicted sex offender chooses to reside within the municipal border. These questions are legitimate, and it is worth our time to fully understand what both the municipality and its citizens can and should do in the face of real and perceived threats to the safety and welfare of our children.
September 8, 2010
More often than not, our courts have trouble keeping pace with advances in science and technology. The dilemmas presented by medical marijuana may be a situation where science and technology have been unable to keep up with the law and the courts. Meanwhile, employers are facing tough decisions as more and more states accept the idea of "medical marijuana".
September 3, 2010
Retirement for Bonus: Classroom Teachers' Early Notice of Year-End Retirement to qualify for $500 bonus, the teacher must give notice to the Board on or before December 1, 2010. W. Va. Code 18A-2-2(g).
September 2010
On August 20, 2010, the Mine Safety and Health Administration (“MSHA”) announced a new 90-day conferencing program in hopes of reducing the number of cases pending before the Mine Safety and Health Review Commission (“Commission”).
September 2010
September 1, 2010
On June 22, 2010, the U.S. Department of Labor ("DOL") issued an Administrator's Interpretation publication that broadly defined who may be in loco parentis to a "son or daughter" for purposes of the FMLA. The DOL's interpretation may have an impact on how schools administer Family and Medical Leave ("FML").
September 2010
Close coordination between the licensee’s product design team and the individual or team responsible for negotiating the license agreement is obviously important. If the Property is a motion picture and the License Product is a video game, for example, knowing whether movie clips are to be included in the game play, whether actors’ likenesses and/or voices will be used, whether additional voice-over recordings by one or more of the actors will be needed, and other such considerations must be anticipated before the agreement is negotiated.
August 31, 2010
A year ago, we reported on “site visits” conducted by U.S. Citizenship and Immigration Services (USCIS) contractors to verify the facts contained in H-1B temporary worker petitions filed by employers.
August 30, 2010
The passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) represents the most ambitious reform of the laws governing the financial industry and corporate America since the Great Depression. The Act touches every domestic financial institution and affects most companies as well. While most of the Act’s provisions are aimed at large financial institutions and public companies, smaller institutions and companies are affected by many of the regulatory changes as well.
August 23, 2010
The Fourth Circuit Court of Appeals has become the latest federal appellate court to weigh in on the viability of public nuisance lawsuits to effectively regulate air emissions. In North Carolina v. Tennessee Valley Authority, (No. 09-1623, July 26, 2010), a unanimous three-judge panel vacated an injunction granted by a North Carolina district court that required power plants located in Tennessee and Alabama to install additional pollution control devices and reduce their emissions.
August 23, 2010
In a decision that may eventually have significance far beyond the nine states encompassed by the Ninth Circuit Court of Appeals, that court ruled on August 17, 2010 that timber companies are required to obtain National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from logging roads that collect such runoff in ditches, culverts and other channels prior to discharge to streams and rivers.
August 16, 2010
Sprinkled among the 2,300+ pages of the Dodd-Frank Wall Street Reform and Consumer Protection Act are a number of provisions that will affect both registered investment advisers and other wealth managers who may not have registered as investment advisers up until now.
August 16, 2010
On July 21, 2010, the same day the Dodd-Frank Wall Street Reform and Consumer Protection Act was signed into law, the SEC quietly released the long-anticipated new Form ADV, Part 2, otherwise known as the registered investment adviser brochure.
August 12, 2010
Arbitration emerged as a mainstream form of dispute resolution because many litigants were fed up with the cost and time of traditional litigation. Parties saw arbitration as an efficient, cost-effective alternative to litigation, and flocked to it like a cure-all elixir. The litigants, however - undoubtedly used to ways of traditional litigation - brought along with them much of litigation’s baggage.
August 9, 2010
Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act") creates a new, independent bureau housed within the Federal Reserve System, the Consumer Financial Protection Bureau (the "Bureau"). The Bureau is tasked with enforcing new and existing federal consumer financial protection laws and rules to ensure that the markets for consumer financial products and services are fair, transparent and competitive.
August 9, 2010
Federal court litigation can be a regular occurrence for many organizations. Often, litigants invest the bulk of their time and resources in managing discovery, developing experts and setting up cases for summary judgment.
August 3, 2010
On June 17, 2010, the U.S. Departments of Treasury, Health & Human Services, and Labor issued an interim final regulation detailing changes that will -- or will not -- cause an employer’s group health benefit plan to lose its “grandfathered plan” status.
August 3, 2010
As part of the current administration's efforts to expand the availability and decrease the costs of health care in the United States, President Obama signed into law the Patient Protection and Affordable Care Act ("PPACA") on March 23, 2010.
August 3, 2010
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Bill"), while formulated to reign in the perceived excesses on Wall Street, has dramatic implications for community banks on Main Street and will undoubtedly impact the way business in West Virginia is done.
August 2, 2010
The West Virginia Constitution requires that "the legislature shall provide, by general law, for a thorough and efficient system of free schools" (W. Va. CONST. art. XII, § 1).
Summer 2010
August 2010
Summer 2010
July 30, 2010
An employer has successfully gained a labor certification application approval from the U.S. Department of Labor ("DOL") and a subsequent Employment Based Third (EB3) I-140 Immigrant Petition approval for a foreign national employee.
July 29, 2010
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act") is the most sweeping act of regulatory reform of the financial sector since the Great Depression.  Numerous provisions of the Act impact financial and public companies in myriad ways.  This update will summarize key provisions of the legislation which impact corporate governance policies and executive compensation requirements of listed companies and covered financial institutions.
July 28, 2010
As employment of summertime youth workers peaks, it is a good time to review compliance with the myriad federal and state laws and regulations governing this segment of your employee pool.
July 27, 2010
During a sluggish economy, one potential source of continuing and stable revenue for a manufacturing entity is a federal contract.
July 27, 2010
A new law (the “Law”) which will affect every existing homeowners association (“HOA”), and those formed hereafter, was signed by the Governor on June 10, 2010.
July 26, 2010
Since 2005, insurers operating in West Virginia have been able to rest a bit more easily knowing that so-called third-party bad faith or Jenkins claims had been eliminated by amendments to the West Virginia Unfair Trade Practices Act.
July 26, 2010
Disputes between parties as to whether or not a particular issue is arbitrable are not uncommon. The party seeking to avoid arbitration may assert both procedural and substantive defenses to claims that a dispute is arbitrable.
July 23, 2010
Sixty percent of the US population is covered by employer-sponsored group health insurance plans. The average premium cost nationwide for those employer-sponsored plans for a family of four is $13,400.
July 21, 2010
The latest copyright infringement decision has emerged against LimeWire, the immensely popular file-sharing client. Judge Kimba Wood of the U.S. District Court for the Southern District of New York found LimeWire was liable for unfair competition, inducing copyright infringement, and copyright infringement itself.
July 19, 2010
Now that the American Land Title Association ("ALTA") has withdrawn the ALTA Form 21-06 Creditor's Rights Endorsement, what steps can a lender take to protect itself?
July 19, 2010
The biggest question in the commercial real estate industry during this recession is, what will happen to all the loans that need to be refinanced if lenders are not lending money? That question remains unanswered, but let's assume a property is exceptional and lenders are willing to provide a commitment to refinance an existing mortgage loan.
July 15, 2010
The passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Bill”) represents the most ambitious and thorough regulatory reform of the laws governing the financial industry since the Great Depression.
July 14, 2010
Many school systems utilize private charter buses for school-sponsored activities for several reasons. One of which comes to mind is the additional comfort provided to students for lengthy field trips or student athletic events. In 2007, the West Virginia State Legislature amended the West Virginia Code to require certain verifications from these private charter companies before those companies could transport more than 16 students.
July 13, 2010
Ohio law disfavors secret meetings of public bodies. This is consistent with the general notion that government should be transparent.
July 12, 2010
On March 23, 2010, the federal Patient Protection and Affordable Care Act ("PPACA") was signed into law. The legislation mandates widespread health care reform that will be implemented over the next several years. The following is a brief summary of those provisions of the PPACA that may affect health insurance plans provided by school districts.
July 12, 2010
Advances in technology over the last decade have changed the way that companies communicate with customers, with clients and with each other.
July 7, 2010
On June 22, 2010, the Ohio Supreme Court issued its decision in McFee v. Nursing Care Management of America, Inc. dba Pataskala Oaks Care Center.
July 4, 2010
July 2, 2010
A series of decisions recently issued by the Supreme Court of the United States, may alter your workplace and result in an evaluation of your polices and procedures as well as potentially create concerns regarding past litigation with unions.
July 2, 2010
On June 23, 2010, the Department of Labor issued guidance to clarify the definition of "son or daughter" under the FMLA as it applies to an employee taking FMLA-protected leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition.
July 1, 2010
To the unsuspecting Ohio health care provider that is asked to disclose patient medical records, it may come as a surprise to learn that Ohio’s physician-patient privilege is at times more restrictive than the Health Insurance Portability and Accountability Act (HIPAA).
Summer 2010
July 1, 2010
I do it. You do it. Virtually everybody does it. The "it" is using your computer at work, or your company-issued cell phone, or your work e-mail account accessed remotely, to conduct non-business-related communications.
July 2010
Summer 2010
July 2010
June 30, 2010
U.S. Citizenship and Immigration Services (USCIS) released the latest numbers relating to the volume of H-1B specialty occupation professional visa petitions that it has received requesting approvals during the H-1B Fiscal Year (FY) 2011 cap season.
June 28, 2010
High-ranking officials within the Obama administration have made it clear that investigating and prosecuting public corruption is a top enforcement priority.
June 28, 2010
Recently, Dinsmore & Shohl held a roundtable discussion featuring three of the firm's leading intellectual property attorneys who examined why a unique and identifiable name is an advantage for any business. The attorneys shared their insights on a number of issues, from differentiating products and experience to pursuing unauthorized use, and most important, the risks of not protecting intellectual property.
June 25, 2010
John Adams once observed that "[f]acts are stubborn things; and whatever may be our wishes, our inclinations, or dictates of our passions, they cannot alter the state of facts and evidence."
June 25, 2010
On June 11, our Supreme Court unraveled significant progress this State has made in recent years to improve West Virginia's insurance climate.
June 24, 2010
With the increased focus by the Obama Administration on financial crimes, health care fraud, and corporate fraud, corporate compliance and ethics programs have never been more important.
June 17, 2010
Hypothetical: In 2006, a corporation took out a loan from a federally insured bank to purchase a building for its corporate headquarters. The corporation is in the business of supplying building products to upscale home builders and in 2008 the corporation's revenues fell by sixty percent.
June 16, 2010
On June 1, the U.S. Supreme Court greatly expanded the powers of law enforcement officers in conducting custodial interrogations. Its decision in Berghuis v. Thompkins, lessens the government's burden to show waiver of a suspect's right to remain silent and clarifies law enforcement obligations established in Miranda v. Arizona more than 40 years ago.
June 14, 2010
If you work for an energy company, you should be concerned about three aggressive regulatory enforcement initiatives
June 9, 2010
The Department of Justice's Antitrust Division and the Federal Trade Commission (the "agencies") recently proposed a revision of the Horizontal Merger Guidelines ("Guidelines").
June 8, 2010
Unions are getting more aggressive about organizing residents, interns and house staff working at hospitals.
June 8, 2010
In the midst of the worst economy since the Great Depression and with unemployment hovering around 10 percent, workplace violence may escalate, management attorney Matthew Nelson of Dinsmore & Shohl says in this BNA Insights article. Nelson discusses trends in workplace violence, government agency responses, and the possibility of employer liability under the doctrine of respondeat superior and theories such as negligent hiring, supervision, and retention.
June 2, 2010
Plaintiffs seeking to recover shaky lost profits damages beware. The Sixth Circuit Court of Appeals recently demonstrated that it will not tolerate large "black-boarded" lost profits figures that lack good faith supporting documentation.
June 2, 2010
In a recently issued opinion, Associate Justice Sandra Day O’Connor, sitting by designation on the Sixth Circuit, issued an opinion reinforcing the statutory restrictions designed to prevent abusive class action securities litigation.
June 1, 2010
Over the past couple of months there have been more and more county boards of education discussing the potential of entering into the oil and gas leases.
Summer 2010
May 28, 2010
Together, the Patient Protection and Affordable Care Act (PPACA) and Health Care and Education Tax Credit Reconciliation Act of 2010 represents widespread health care reform which will be implemented over a number of years to come.
May 28, 2010
A recent decision issued by the Department of Justice's Office of the Chief Administrative Hearing Office ("OCAHO"), found that an employer's failure to complete Section 2 of the I-9 (Employment Eligibility Verification) form within three business days was a "substantive" rather than technical/procedural violation.
May 25, 2010
Employers cannot avoid the requirements of federal law by simply labeling employees as “interns” or “trainees.” As a general rule, those engaged in legitimate internships or training programs are not covered by federal employment law.
May 21, 2010
In March, Congress passed comprehensive health care reform: "The Patient Protection and Affordable Care Act."
May 20, 2010
Since 2006, the mining industry in the United States has experienced several tragic events. The incidents at Sago, Aracoma, Darby, and Crandall Canyon resulted in sweeping changes in both state and federal mining laws, in addition to increased scrutiny by state and federal regulators.
May 17, 2010
May 12, 2010
May 12, 2010
The Ohio Supreme Court held on May 4, 2010 that attorneys fees awarded as a result of a judgment for punitive damages are insurable under an automobile policy. Lahman et al. v. Allstate Insurance Company, 2010-Ohio 1829.
May 12, 2010
May 7, 2010
On Tuesday May 4, 2010, EPA started the process of federal regulation over the disposal and storage of coal combustion residuals, commonly referred to as coal ash. Coal ash has been largely exempt from federal regulation, leaving oversight to individual states.
May 4, 2010
The United State Supreme Court, in the 1969 decision of Tinker v. DeMoines Independent Community School District, recognized that children have a 1st Amendment right to free speech in the school environment.
May 4, 2010
The economic recession has brought renewed pressure on law firms to adapt to the concept of alternative fee arrangements. Simply put, corporate counsel are balking at increasing hourly rates in the face of significant internal pressure to slash their budgets.
May 3, 2010
Pursuant to the Patient Protection and Affordable Care Act of 2010 (PPACA) that was signed into law by President Obama on March 23, 2010, substantive amendments have been made to the Fair Labor Standards Act, 29 U.S.C. § 201, et. seq. (FLSA). These amendments will impact Section 7 of the FLSA, and will add Section 7(r) that will be codified as 29 USC § 207(r). In particular, Section 7 of the FLSA now requires that employers must provide reasonable unpaid break time to allow mothers to express breast milk her nursing child.
May 1, 2010
The Kentucky Association of Manufacturers lobbying team was successful in altering legislation impacting manufacturers in a positive manner.
May 1, 2010
“Kentucky support grows for slot machines,” read the headline in the Feb. 3, 2010, edition of the Louisville Courier-Journal. “Fifty-nine percent of all Kentuckians now support video gambling at horse racetracks while an overwhelming 85 percent of voters want the opportunity to vote on the issue.”
May 1, 2010
When the 2010 Regular Session of the Kentucky General Assembly began in January, it was commonly understood that wrangling over the Commonwealth's budget would consume a substantial portion of the legislature's time.
April 30, 2010
Arizona's Governor Jan Brewer signed a bill into law on April 23, 2010 that makes it a state crime to be in Arizona illegally and requires state police to check the status of people they suspect to be illegal immigrants.
April 30, 2010
As all readers of this publication know, the United States estate tax and the United States generation-skipping transfer tax both became inapplicable for persons dying and generation-skipping transfers made after December 31, 2009, and before January 1, 2011.
April 30, 2010
About a year ago, I wrote in these pages that efforts by the federal Environmental Protection Agency (EPA) to restrict coal mining in West Virginia have very little to do with trying to enforce compliance with existing laws.
April 28, 2010
A 2008 ruling by the Ohio Supreme Court may surprise mortgage lenders. It may also impact compromises with defaulting borrowers. The decision, U.S. Bank Nat’l Assoc. v. Gullotta (2008), 120 Ohio St.3d 399, may limit the number of times a lender may file a foreclosure action seeking to recover the full amount due on a note and mortgage.
April 22, 2010
Learn about the Involvement of Human Resources Representatives During Potential Mergers and Acquisitions, Hiring Local Executives Rather Than Transferring Company Executives
April 22, 2010
What is Social Networking? Why developing an on-line presence is important in a Web 2.0 world...
April 20, 2010
April 20, 2010
Continuing its recent trend of inserting whistleblower protections in significant legislation that impacts public health and safety, Congress included whistleblower and retaliation protections in the recently-enacted Patient Protection and Affordable Care Act ("PPACA"), the comprehensive health care legislation signed by President Obama in March 2010.
April 15, 2010
Earlier this month, two new tax benefits became available to employers hiring workers who were previously unemployed or only working part time. These provisions are part of the Hiring Incentives to Restore Employment Act (the “HIRE Act”) enacted into law on March 18th.
April 13, 2010
On April 1, 2010, the Environmental Protection Agency and DOT's National Highway Traffic Safety Administration (NHTSA) set national greenhouse gas (GHG) emissions standards for 2012 through 2016 model-year cars and light trucks.  This action represents the first-ever rule to regulate GHG emissions under the Clean Air Act.  While the public may focus on
April 13, 2010
As reported in previous Dinsmore & Shohl Legal Alerts, the December 2008 breach of a coal ash impoundment at the Tennessee Valley Authority's facility in Kingston, Tennessee resulted in the spill of over 5 million cubic yards of coal ash into adjacent waterways and properties.  As a consequence
April 8, 2010
Lenders and property owners relying on the creditor's rights endorsement to their policy of title insurance will quickly learn, if they have not already, that this endorsement has become widely unavailable.
April 7, 2010
Out-of-state defendants sued in state court often consider whether removal to federal court is possible. When the underlying cause of action sounds in state law, removal typically must be premised on the diverse citizenship of the parties.
April 5, 2010
As summer approaches, teenagers across the country will take on summer jobs as a way to earn extra money, build a resume, or save for college.
April 2010
The first of the three preceding articles in this series discussed essential differences between the trademark laws of the United States (which determine ownership of a mark on the basis of its actual use in commerce) vs. those of most other countries (which define ownership by earliest registration alone).
April 1, 2010
April 1, 2010
Just before it closed its session, the West Virginia Legislature passed a bill that will impact construction--including that of school buildings and facilities--beginning in June of 2010. The bill, which Governor Manchin signed March 19, 2010, is intended to strengthen the State's efforts to promote the use of local labor on construction projects within the State.
Spring 2010
April 1, 2010
The Family and Medical Leave Act of 1993 ("FMLA") establishes minimum federal standards that Ohio School Districts must follow for medical, child care and family-related leave. Properly administering FMLA leave will save your School District money and reduce its liability.
April 1, 2010
Spring 2010
March 31, 2010
After over a year of debate, Congress passed legislation in March to reform the health care delivery system in the United States: "The Patient Protection and Affordable Care Act."
March 31, 2010
The Sixth Circuit Court of Appeals holds that a plaintiff-employee's claim of disability discrimination (based on the defendant-company's requirement that he take a functional capacity evaluation) cannot withstand summary judgment, as valid safety reasons supported the required test, it was not an adverse employment action and did not prove discrimination.
March 31, 2010
As reported in previous Immigration Insights, the U.S. government is conducting more frequent visits to locations where H-1B workers are employed in an effort to find instances of immigration fraud.
March 26, 2010
The Ohio Supreme Court ruled yesterday that the Franklin County Board of Commissioners abused its discretion and improperly disqualified The Painting Company’s lowest bid for painting services on the Huntington Ballpark based upon purported prevailing wage “violations.”
March 23, 2010
March 19, 2010
Staying in business during a long recession is challenging enough without having to prepare for a worldwide flu pandemic. While the business world's response to pandemic flu concerns has managed the H1N1 threat to this point, many businesses should be monitoring employee absences related specifically to H1N1.
March 18, 2010
March 16, 2010
As has been described in previous Alerts (See "Opposition to Coal Mining in West Virginia: It's Not About the Law"), EPA has used a number of different approaches in seeking to thwart the issuance of so-called "dredge and fill" permits under Section 404 of the federal Clean Water Act (CWA) for coal mining projects in Appalachia.
March 15, 2010
For owners of family owned businesses, one thing is certain, the withdrawal of the owner of the family business is inevitable. This creates a need to develop a mechanism for the successful transition of the family business.
March 10, 2010
March 10, 2010
On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act (ARRA). The Act is an extraordinary response to the slowdown plaguing the United States economy.
March 2, 2010
The frequency of this question being posed to coal lawyers has increased dramatically in the past few years. In particular, issues about ventilation and respirable dust compliance as well as extended cuts have frequently been raised in the context of plan disputes.
March 2, 2010
Statistics regarding payment systems in the United States are by now well-known. Check usage hit all-time highs in the 1990s, but has been on the decline since. Meanwhile, debit card, credit card, and electronic or automated clearing house (ACH) payments have sky-rocketed.
March 2, 2010
Today, in a 5-2 decision, the Ohio Supreme Court held that in a private action by employees, the penalties set forth in the prevailing-wage statute, R.C. 4115.10(A), are mandatory penalties that must be imposed against a party found to have violated the prevailing-wage law.
March 1, 2010
March 1, 2010
In January, the U.S. Equal Employment Opportunity Commission (EEOC) issued a press release announcing that 93,277 workplace discrimination charges were filed with the federal agency nationwide during Fiscal Year 2009 - the second highest level ever.
March 1, 2010
Four things you need to know to protect your lien rights in Ohio: Know your deadline for filing the lien, Know if you have to provide a “Notice of Furnishing,” Know what you are signing & Know what information your counsel will need to prepare a mechanic’s lien.
March 1, 2010
At its Fall Meeting in Brussels, at the National Bank of Belgium, the International Chamber of Commerce Commission on Banking Technique and Practice voted to approve a new revision of the Uniform Rules for Demand Guarantees (ICC Publication 758).
March 1, 2010
A high school boy receives, via text message, naked photos of his girlfriend from her. Later in the week, the boy shares the photos with several of his classmates, and forwards the text messages to several of his basketball teammates and others.
February 28, 2010
On April 1, 2010, U.S. employers may again file H-1B (specialty occupational professional) work visa petitions soliciting U.S. Citizenship and Immigration Services ("USCIS") approval that will be effective on October 1, 2010, the first day of the next federal year.
February 26, 2010
"Pay When Paid" clauses in construction contracts are used as both a sword and a shield. If a general contractor fails to pay a subcontractor after it gets paid, the general contractor can be liable for interest and attorneys' fees to the subcontractor.
February 26, 2010
The U.S. Department of Labor (DOL) Employment and Training Administration updates its processing times for PERM labor certifications usually each month on its website.
February 25, 2010
“Perfect for a single person” or “ideal for empty-nesters” are phrases that may be helpful in illustrating the small size of an available apartment, but the use of such language in a rental advertisement can lead to significant and costly legal issues even for a well-intentioned landlord.
February 16, 2010
February 10, 2010
With the passage of the Fraud Enforcement and Recovery Act of 2009 (“FERA”) on May 20, 2009, several landmark changes to the False Claims Act were signed into law.
February 9, 2010
When the Mine Safety and Health Administration ("MSHA") issued Program Information Bulletin ("PIB") No. P09-05 on March 27, 2009, the due process rights of the mine operators suffered another devastating blow.
February 8, 2010
Starting a small business requires determination, motivation, and know-how. Careful planning and thoughtful preparation from the beginning can determine whether a new business will succeed or fail.
February 8, 2010
Unquestionably, more students are receiving special education services for autism than ever before and the occurrence of autism spectrum disorder continues to rise.
February 1, 2010
The use of social media sites to market real estate has exploded during the past several months. Social media offers an opportunity for instant, personalized two-way communication between developers, sales agents and prospective real estate purchasers. As the number of people using social media increases, so does the likelihood that companies engaged in real estate transactions will utilize social media as a secondary storefront or that representatives of such companies will discuss their real estate endeavors on social media.
February 1, 2010
In January the U.S. Equal Employment Opportunity Commission (EEOC) issued a press release announcing that 93,277 workplace discrimination charges were filed with the federal agency nationwide during Fiscal Year 2009, the second highest level ever.
February 1, 2010
February 2010
On Tuesday February 23, 2010, the House Education and Labor Committee heard testimony from witnesses from organized labor, the operator side, and from the federal government, regarding the increased number of backlogged cases pending at the Federal Mine Safety and Health Review Commission (“FMSHRC”).
February 1, 2010
Congress has been debating federal health care reform for months and the debate has taken a variety of twists and turns. Until this month, nearly everyone predicted that Congress would pass a comprehensive federal health care reform bill prior to the President's State of the Union address.
January 29, 2010
When your employee applies for a nonimmigrant visa at a U.S. embassy or consulate abroad, keep in mind possible (and sometimes unforeseen) delays due to what the U.S. government calls "administrative processing."
January 26, 2010
On January 21, 2010, United States Secretary of Homeland Security (Secretary) designated Haiti for Temporary Protected Status (TPS) relief in response to the severe impact and aftermath of the earthquake that struck near the country's capital on January 12, 2010.
January 25, 2010
January 22, 2010
Welcome to 2010 (i.e., "the future"), where you no longer call someone to ask them out on a date -- you text message them using your cell phone, Blackberry, or other mobile device. And, maybe you couldn't quite tell from their response whether they are uninterested or simply playing hard to get, so you text them again.
January 19, 2010
When guarding against enforcement actions, ensuring proper recording of workplace illnesses and injuries may not seem like a high priority. However, this is changing. On September 30, 2009, the Occupational Safety and Health Administration (OSHA) initiated a targeted one-year Injury and Illness Recordkeeping National Emphasis Program (RK NEP).
January 13, 2010
January 12, 2010
The SEC recently adopted new rules related to the Custody of Funds or Securities of Clients by Investment Advisers (SEC Release No. IA-2968). The new rules become effective March 12, 2010.
January 7, 2010
As a new decade begins, coal companies with operations in Appalachian states face the prospect of continued efforts by opposition groups and their federal agency allies to severely limit their production activities, including in particular the development of new surface mines.
January 7, 2010
The federal Environmental Protection Agency published a federal register notice on January 4, 2010 soliciting comments on proposed national enforcement priorities for the years 2011 through 2013. According to the notice, “EPA selects these priorities every three years in order to focus federal resources on the most important environmental problems where noncompliance is a significant contributing factor.”
January 5, 2010
We recommend a current review of your estate plan due to the temporary repeal of the Federal Estate Tax and Generation Skipping Tax. This review is particularly important because estate planning documents often divide assets among beneficiaries by using a tax-based formula that is premised on the existence of a federal estate tax.
January 5, 2010
A common issue always arising among West Virginia county boards of education relates to the filling of coaching positions in public schools. For example, does a citizen (non-employee) receive a coaching position over a currently certified professional educator?
January 1, 2010
2010
January 1, 2010
The following articles were authored by Mike Newman and Faith Isenhath for The Federal Lawyer's Labor & Employment Corner
January 2010
Winter 2010
2010
December 28, 2009
The H-1B nonimmigrant visa category, which includes a total of 85,000 "slots" per government fiscal year, has reached its limit for FY2010 (October 1, 2009 to September 30, 2010). According to U.S. Citizenship and Immigration Services (USCIS).
December 28, 2009
U.S. Citizenship and Immigration Services (USCIS) has announced plans to conduct 25,000 site visits this fiscal year in connection with H-1B petitions filed by U.S. employers. The purpose for the visits is to confirm that the information provided by the employer to USCIS in the H-1B petition is accurate and that the employee is working at the location specified and being paid the salary stated in the petition.
December 28, 2009
Public construction in Ohio accounts for nearly $3 billion a year in state spending. These projects include everything from renovations to state government buildings to local school buildings through the Ohio School Facilities Commission, to building and renovation projects on Ohio’s public university and college campuses.
December 23, 2009
As 2010 begins, now is a good time to review and update your employee policies and to ensure your managers are strictly following them. In particular, we suggest considering an update to your Computer Usage, Internet, and E-mail Policy.
December 22, 2009
After intense debate regarding Ohio's state budget deficit, Governor Strickland signed into law a bill that delays a personal income tax cut for two years (H.B. 318). This tax reduction was to be the last step of implementing Ohio's 2005 Tax Reform Act. The 2009 and 2010 top Ohio personal income tax rate will be 6.24% - instead of the 5.925% as anticipated if the tax cut had not been delayed.
December 21, 2009
Major equipment fails … Underground fire halts production … Railroad goes on strike … Waterway is frozen … Flood washes out only bridge from mine to rail yard … Coal transportation halted for months …. When you hear these words from your transportation/logistics manager, it's the wrong time to learn what your coal supply and transportation contracts say about "Acts of God" or other force majeure events.
December 9, 2009
The economic meltdown has left many hospitality development projects in a ditch, but as 2010 approaches, some hospitality real estate projects may be ripe for new life. Pursuing distressed assets may offer a tremendous upside to developers, but the unforeseen downsides can devastate the effort if they are ignored at the front end of the deal.
December 9, 2009
West Virginia State Board of Education Policy 4373 is better known as the Student Code of Conduct ("Policy 4373"). Policy 4373 "sets the requirements for the conduct of students in West Virginia schools in order to assure a nurturing and orderly, safe, drug-free, violence-and-harassment-free learning environment that supports student academic achievement and personal-societal development."
December 9, 2009
In a recently published decision, Ohio’s Third District Court of Appeals addressed the scope of the so-called “absolute pollution exclusion.” Bosserman Aviation Equipment, Inc. v. United States Liability Insurance Company (3rd Dist.), 183 Ohio App. 3d 29, 2009-Ohio-2526. The Court found that the exclusion does have limits. Thus, despite the exclusion, coverage can be found for an employee's injuries arising out of exposure to toxic chemicals in certain workplace situations.
December 7, 2009
December 4, 2009
On October 6, 2009, the United States Environmental Protection Agency ("EPA") published a Final Rule entitled "Standards of Performance for New Stationary Sources and Emissions Guidelines for Existing Sources: Hospital/Medical/Infectious Waste Incinerators" ("Rule"). 74 Fed. Reg. 51369.
December 3, 2009
The Sixth Circuit Court of Appeals holds that a plaintiff-employee's claim of sex discrimination (failure to promote) should not have been dismissed, but rather may proceed to trial based on an accumulation of circumstantial evidence, much of which had little or nothing to do with the decision-maker's decision not to promote the female employee.
December 2009
December 1, 2009
November 30, 2009
U.S. Citizenship and Immigration Services (USCIS) has announced plans to conduct 25,000 site visits this fiscal year in connection with H-1B petitions filed by U.S. employers. The purpose for the visits is to confirm that the information provided by the employer to USCIS in the H-1B petition is accurate and that the employee is working at the location specified and being paid the salary stated in the petition. The number of site visits is a five-fold increase from the previous fiscal year.
November 17, 2009
Anyone who has paid any attention to the press covering the state of the law regarding pregnancy discrimination in Ohio knows that its an area where clarity is greatly needed. Hopefully, by accepting the case of Nursing Care Management of America d/b/a Pataskala Oaks Care Center v. Ohio Civil Rights Commission, the Ohio Supreme Court has signaled that it will provide some much needed guidance in the interpretation and application of Ohio's pregnancy discrimination laws.
November 16, 2009
According to Columbus Public Health and the Franklin County Board of Health, providers are no longer required to report a single confirmed case of H1N1. As of August 5, 2009, the Ohio Department of Health no longer considers H1N1 a novel influenza virus. Thus, public health surveillance for this virus will now be identical to that done for seasonal influenza viruses.
November 13, 2009
Commercial property owners know all too well the impact that the worst economic downturn since the Great Depression has had on access to credit. While interest rate cuts have given some owners an opportunity to purchase new properties or tap existing properties' equity for operating capital, lower rates don’t necessarily mean it will be easy to obtain financing.
November 12, 2009
November 11, 2009
Over the past two years, the United States Supreme Court has had two opportunities to address and add to the jurisprudence in the area of federal pre-emption of state law claims regarding allegedly defective medical devices and prescription drugs, which are both regulated by the US Food and Drug Administration (FDA).
November 6, 2009
Any private entity with significant greenhouse gas (GHG) emissions could be identified in the next climate change lawsuit. Filed in 2004 by a coalition of states and land trusts, Connecticut v. American Electric Power was the first major climate change lawsuit identifying private entities as defendants. On September 21, 2009, the 2nd Circuit in Connecticut permitted plaintiffs to seek an order capping the carbon dioxide emissions of five electric utilities by certain percentages for at least 10 years.
November 4, 2009
The recent decisions of Perry v. Novartis and Zandi v. Wyeth signify a trend towards courts excluding unreliable expert witness testimony based on differential diagnosis in toxic tort cases. Each of these courts concluded that, although differential diagnosis can be a generally accepted method for determining causation, the proffered expert witnesses improperly and unreliably applied the methodology in these cases by failing to account for unknown causes of the plaintiffs' alleged injuries.
November 3, 2009
The United States Supreme Court will soon decide whether the National Labor Relations Board has jurisdiction to resolve labor disputes. For the past two years the Board has operated with only two members. Under the National Labor Relations Act, the Board, which ordinarily consists of five members, needs at least three members for a quorum.
November 2, 2009
"Personnel Season" this school year is just around the corner, with deadline dates different than past years. "March Madness" as we once all knew personnel season to be comes earlier this year as a result of legislative changes. The NEW personnel season deadline requirements for the 2009-2010 school year are as follows
November 2009
November 2009
October 29, 2009
Under the Immigration Reform and Control Act of 1986 (IRCA), limiting employment to U.S. citizens or lawful permanent residents (green card holders) can be a violation of law. Under IRCA, the protected class of individuals who generally may not be discriminated against in hiring, termination, and recruiting, or referring for a fee consists of U.S. citizens, lawful permanent residents, "temporary residents" (a term of art that applies to almost no one anymore), and refugees and asylees.
October 29, 2009
October 16, 2009
Most of us are confident that when our business floods, or home burns down, that we have sufficient insurance coverage to ensure we can rebuild and provide for the future. Surely, if we have paid our premiums, given prompt notice, provided our insurers with all the necessary paperwork and cost estimates, and we had nothing to do with causing the loss, then we will be paid for the loss. Right?
October 16, 2009
My nine-year old is a typical boy who loves sports and thinks he will play basketball or golf in college, but, realistically, he's no Michael Jordan or Tiger Woods. I'm not counting on a full ride. At the same time, I do want to enable him to attend the college of his choice without being constrained by an inability to pay for it when the time comes.
October 16, 2009
The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (“the Rotterdam Rules”), which has opened for signatures since September 23, 2009, has enjoyed widespread support and has already been signed by 19 states, including the United States.
October 13, 2009
October 2, 2009
During the past year, difficult times have led the federal government to commit an impressive amount of financial resources to the improvement of a weakened and vulnerable economy. As those federal resources are harnessed, inevitably there will be an assembly of bad actors seeking to profit unfairly through various forms of fraud.
October 2, 2009
The Obama Health Plan obviously is the topic of the day. However, the Obama Health Plan is not really a "plan" to reform the health care delivery system in the U.S. The Obama Health Plan is really an initiative to address what the President believes to be three major problems with the health care delivery system in the U.S.
October 2009
October 1, 2009
What rights do home-schooled children have to participate in interscholastic sports in West Virginia public schools? In 2005, the West Virginia Supreme Court of Appeals in Jones v. Marion County Board of Education, et al., ruled "that treating public and nonpublic school children differently with respect to participation in interscholastic sports does not violate equal protection."
October 2009
October 1, 2009
The following presentation was offered by Anna Dailey, Jennifer Mitchell, and Dr. Matthew Zahn at a webinar hosted by the Bureau of National Affairs (BNA) on October 1, 2009. 
September 30, 2009
The United States Court of Appeals for the Sixth Circuit recently affirmed a lower court decision rejecting an employee's age discrimination claim arising out of a reduction in force ("RIF").  In Geiger v. Tower Automotive, No. 08-1314, 2009 WL 2836538 (6th Cir. September 4, 2009), a 62-year old former employee of Tower Automotive ("Tower") brought claims of age discrimination under the federal Age Discrimination in Employment Act ("ADEA") and a Michigan state civil rights statute.
September 30, 2009
As we reported in an earlier Immigration Insights, most federal contractors are subject to the new E-Verify regulation effective September 8, 2009.  Federal agencies that issue new, extended or modified contracts of more than a defined de minimis amount or duration will include a clause requiring the federal contractor to verify all new hires plus at least those employees assigned to directly perform work under the contract. 
September 25, 2009
September 25, 2009
In the midst of conflicting reports about the nation’s economic recovery, questions abound among the tri-state’s business leaders and entrepreneurs. Are lenders ready to make loans again? When will we see unemployment numbers stabilize? What industries are showing signs of growth? Essentially, are we there yet?
September 16, 2009
Green building and sustainable development initiatives rapidly are taking hold throughout the finance and real estate industries. A confluence of decreasing green building costs and escalating energy expenses now provide compelling and multiple rationales for the identification of sustainability-related opportunities and risks.
September 9, 2009
As discussed in a previous alert, self-insured health care providers face the same compliance requirements and challenges as do those primary payers that qualify as Required Reporting Entities (“RRE”) under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (42 U.S.C. 1395y(b)(7) & (8)).
September 2, 2009
The Obama Administration's efforts to rescind the revised Stream Buffer Zone Rule, enacted at the end of the Bush era, suffered a setback earlier this month.  On August 12, 2009, United States District Court Judge Henry Kennedy, Jr. issued a Memorandum Opinion and Order denying the government's motion to vacate the Stream Buffer Zone Rule. Judge Kennedy presides over the lawsuit brought by the National Parks Conservation Association ("NPCA") contesting the validity of the revised rule.
September 2, 2009
A Clean Water Act citizen suit may proceed against a coal operator notwithstanding government enforcement action addressing the same alleged violations, according to a federal district judge in West Virginia. 
September 2, 2009
The Mine Safety and Health Administration ("MSHA") recently released a document entitled "Contested Penalty Date- FY 2008-2009" containing data on the disposition of cases contested before the Federal Mine Safety and Health Review Commission ("Commission"). The data was requested by the U.S. House Education and Labor Committee which is apparently investigating claims by MSHA officials that mine operators are abusing the Commission's procedure for contesting MSHA citations and penalties.
September 2, 2009
EPA recently released a pre-publication version of a Notice of Data Availability and Request for Comments ("Notice") pertaining to its proposed regulatory amendments to the Underground Injection Control (UIC) Program that would establish a new class of wells (Class VI), pursuant to its authority under the federal Safe Drinking Water Act.
September 2009
September 1, 2009
"Enforcement" is now the word of emphasis at the Mine Safety and Health Administration. According to MSHA statistics, civil penalties to coal mines climbed 1,152%, $12.2 million to $152.7 million, from 2000 to 2008 – supposedly the era of cooperation between operators and the agency.
September 1, 2009
West Virginia State Board of Education Policy 8200 sets forth the purchasing guidelines for a county board of education. Although Policy 8200 is over sixty-five pages in length, it's always prudent for school superintendents, central office staff, principals, and board members to review the Policy on a yearly basis.
August 31, 2009
Following the passage of the American Recovery and Reinvestment Act of 2009 (the “Recovery Act”) last February, the Department of Health and Human Services (“HHS”) and Federal Trade Commission (“FTC”) have given marching orders to healthcare providers and related entities to provide breach notification in relation to compromised protected health information and other forms of individually identifiable health information (“HHS Rule” and “FTC Rule”). Any provider or business that handles health records should be aware of these new federal rules.
August 28, 2009
As a result of a court ruling this week, most Federal contractors can expect to be subject to the federal government’s “E-Verify” employee verification program under a federal regulation that will take effect on September 8th – one day after Labor Day.
August 27, 2009
The fall flu season is here and it may soon affect your business. The CDC, Homeland Security, the Department of Labor and the Department of Health and Human Services have prepared guidance documents and have a website: www.flu.gov, which has separate areas with advice for businesses, schools, healthcare providers, families and communities.
August 24, 2009
While the march to make 403(b) Plans look and act more like 401(k) Plans continues, the DOL issued guidance on the Form 5500 requirements to make this move easier. On January 1, 2009, new Final Treasury Regulations became effective which detailed multiple requirements imposed on 403(b) Plans.
August 24, 2009
By all appearances, organized efforts to put an end to surface coal mining, especially in West Virginia, have been moving at warp speed since the new Administration took office. Indeed, it seems hardly coincidental that the first in a series of threatening communications from EPA’s Region III to the Corps of Engineers' Huntington District office, regarding new scrutiny to be given to the permitting of coal-related projects, was dated January 20, 2009, the day that President Obama was sworn in.
August 20, 2009
While much of the nation's attention is now focused on the healthcare debate, also pending before the U.S. Senate is legislation that will have at least as great an impact on the day-to-day lives of Americans in general and West Virginians in particular. On June 26, the House approved the "American Clean Energy and Security Act," also known as the "Waxman-Markey bill."
August 19, 2009
Injuries arising from intentional acts often spawn claims of negligent supervision, training, retention, and/or entrustment brought against parties other than the intentional wrongdoer. On August 4, 2009, the Ohio Supreme Court in Safeco Ins. Co. of Am. v. White, 2009-Ohio-3178, issued a significant decision addressing whether such negligent acts are "occurrences" under liability insurance policies and, if so, whether intentional-act exclusions bar insurance coverage for such claims.
August 18, 2009
August 11, 2009
It's the rare coal company that has not encountered illicit drug use among its employees. SAMSHA (Substance Abuse and Mental Health Services Administration) reported in 2003 that more than 12% of miners reported illicit drug use and 15.7% reported heavy alcohol use, with 10% of all miners saying they were dependent on alcohol.
August 11, 2009
Unfortunately, the current recession is still taking its toll in West Virginia and nationwide, with economists predicting the unemployment rate will continue to rise until at least early 2010. Laying off or otherwise terminating an individual's employment is never pleasant, and becomes even more stressful for employers as they attempt to comply with the various laws that come into effect when terminations are implemented.
August 2009
July 31, 2009
On July 8, 2009, Department of Homeland Security (DHS) announced that it intends to propose a new regulation rescinding the Social Security No-Match Rule, which has been blocked by a court order since 2007.
July 30, 2009
The Ohio Supreme Court recently held that non-party medical records are not discoverable in a private lawsuit, even if personally identifiable information has been redacted. Roe v. Planned Parenthood Southwest Ohio Region, No. 2009-Ohio-2973, slip op. at 2 (Ohio 2009).
July 30, 2009
Securities law requires publicly-traded companies to report material risks. Does the Securities Exchange Commission (SEC) currently stipulate that material climate risks be disclosed under existing law? No - at least not yet. Should publicly-traded companies evaluate whether climate change is reasonably likely to impact their future financial performance?
July 29, 2009
Almost thirty years after the Pennsylvania Supreme Court adopted strict products liability law, two recent appellate decisions, one from the Pennsylvania Supreme Court and one from the United States Court of Appeals for the Third Circuit suggested that perhaps change was in the air. However, when given the chance to change the law, in a case argued and decided earlier this summer, the Pennsylvania Supreme Court declined to do so.
July 28, 2009
In its "Quality and Performance Standards" promulgated in June 2008, the West Virginia School Building Authority incorporated the LEED green building certification system and introduced the concept of funding one project per year to become LEED-certified. As construction is underway on Spring Mills Primary School in Berkeley County--the SBA's first project slated for LEED certification--West Virginia schools now have a test case for whether and to what extent LEED certification will affect the construction industry.
July 28, 2009
On June 29, 2009, the U.S. Environmental Protection Agency (EPA) identified 44 coal combustion residual (CCR) impoundments as having "high hazard potential." EPA said that "[a] high hazard potential rating indicates that a failure will probably cause loss of human life." EPA's list is based on information that electric utility companies submitted in response to EPA's March 9, 2009 request. 18 of the 44 sites are in Ohio, Kentucky, West Virginia, and Pennsylvania.
July 24, 2009
July 23, 2009
The members of Dinsmore & Shohl Compensation and Benefits Practice Group often come across news items, government pronouncements, court cases or other random bits of information that might be useful or interesting to our clients.  Beginning this month, we will send occasional updates with information you may find useful.
July 22, 2009
July 22, 2009
July 22, 2009
July 21, 2009
In an Order issued by the Supreme Court of Pennsylvania, Middle District, on June 16, 2009, the Court granted the Application to File a Reply Brief and the Petition for Exercise of Extraordinary Jurisdiction in the matter of Kilmer v. Elexco Land Services, Inc., No. 46 MM 2009, and directed the parties to file briefs on the legal question set forth below.
July 21, 2009
Still listening to CDs instead of downloading the latest songs to your iPod? That's okay. Do you shun Blackberries and other smartphones? No big deal. Sometimes, no matter how great everyone tells us the latest technology is, we find it more comfortable or preferable to stick with what we know.
July 20, 2009
Minnesota's Department of Public Safety's Alcohol and Gambling Enforcement Division recently notified eleven ISPs that it was withdrawing a notice which asked them to block access to 200 online gambling sites. Jon L. Fleischaker and Edward T. Depp, of Dinsmore & Shohl LLP - representatives of the Interactive Media Entertainment & Gaming Association (iMEGA), examine why the Wire Act - used as the legal reasoning behind the notice - cannot be used to block access to online gambling sites.
July 16, 2009
July 15, 2009
Unless you do it for living, you likely go through the day without much thought to employment law. Sure, you’ve seen stories about scandalous discrimination lawsuits, and maybe even know someone who has been on one side or the other of a wrongful discharge case. But you work hard and treat those around you fairly -- certainly you will not be involved in a lawsuit, right?
July 9, 2009
Possibly the best way for employers to protect themselves from a result like the one in Peters v. Rivers Edge is to make sure to conduct surveillance only when there is a reason to believe an employee is engaging in activities inconsistent with his or her claimed injury, and to be sure to thoroughly document the non-discriminatory reasons for every employment decision made with respect to an employee who has filed a workers’ compensation claim.
July 8, 2009
April 21, 2009 likely changed law enforcement and criminal prosecution forever. On that day, the United States Supreme Court announced its latest decision regarding warrantless searches of vehicles incident to lawful arrests in Arizona v. Gant.
July 2, 2009
Yesterday, U.S. Department of Homeland Security, Immigration and Customs Enforcement ("ICE") issued 652 I-9 Audit Notices of Inspection ("Notices") to employers across the country. The number of Notices is significant, as it is more Notices than ICE issued during all of the last fiscal year. Equally important is ICE’s statement that businesses in every state and industry are being audited, "from agriculture-related businesses, to service businesses, to high-tech industry and everything in between." Here is what employers need to know.
July 2, 2009
On June 25, 2009, the United States Supreme Court of Appeals issued an important decision in Safford Unified Sch. Dist. #1 v. Redding, relating to whether the 4th Amendment of the Constitution prohibits a public school from conducting a search of a student suspected of possessing and distributing prescription drugs on campus in violation of school policy. The Court ruled that the search in question did in fact violate the student's 4th Amendment rights.
Summer 2009
2004 - Present
July 1, 2009
June 30, 2009
In a unanimous decision, the Ohio Supreme Court ruled today that prevailing wages are not required on private projects supported with public funds. The Court held that the state’s prevailing wage law applies only to work performed in the construction of a “public improvement” by or for the benefit of a public authority, and does not apply to work performed on private development projects partially supported by public funds.
June 30, 2009
U.S. Citizenship and Immigration Services (USCIS) has confirmed that the Employment Eligibility Verification form I-9 (revised 02/02/09) currently posted on USCIS’ website will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. USCIS will update Form I-9 when the extension is approved by OMB. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.
June 29, 2009
Environmental due diligence inquiries come in various types and costs. How much and what kind of environmental data is necessary to make an informed decision for a particular transaction depends on (1) who the user is, and (2) the user's objectives. Historically, liability concerns prompted environmental due diligence inquiries.
June 25, 2009
ALFA International, a global network of law firms of which Dinsmore & Shohl is a member, has announced that its members have voted to admit Gaopeng & Partners as the ALFA International in China.  Gaopeng & Partners has its main office in Beijing and associated offices and Shanghai and Shenshen and serves Chinese and international clients on all aspects of Chinese and international business law.
June 24, 2009
On June 22, 2009, in a 6-3 decision entitled Forest Grove School District v. T.A., 557 U.S.__(2009),  the United States Supreme Court, held that a local school district must pay for the private residential tuition for a child who had never received special education services in a public school.
June 24, 2009
The Ohio Supreme Court clarified and limited the scope of Ohio’s Prevailing Wage law by re-affirming its prior 1935 ruling that employees fabricating materials off-site are not entitled to be paid prevailing wages, and by ruling that a union cannot file claims on behalf of any employee that does not provide the union with his or her written consent.
June 19, 2009
Senate Bill 1006 created changes to personnel deadlines. Below are  the NEW personnel season deadline requirements for the 2009-2010 school year.
June 19, 2009
Medicare has revised the rules regarding provider enrollment and the effective date for Medicare billing privileges.  Until recently, providers were permitted to bill Medicare for claims on services provided up to one year prior to the date of their enrollment application. 
June 19, 2009
The Western Hemisphere Travel Initiative (WHTI) specifies the documents U.S., Canadian, Mexican, and Bermudian citizens may present to enter the United States.  The following chart summarizes documentary options for such citizens seeking to enter the United States by air, car or vessel.
June 17, 2009
The U.S. State Department’s July 2009 Visa Bulletin reflects a retrogression of more than five years in the Employment Second Preference for China.  The Employment First and Third Preference categories remain unchanged compared to the June 2009 Visa Bulletin.
June 17, 2009
It is a given that over the life of a case a few surprise facts, documents and/or witnesses will crop up thereby affecting the evaluation of the case. The more problematic "discoveries," however, involve factors which preclude the litigation from going forward. These factors are generally discoverable at the outset of litigation but are often overlooked because they fall outside of the traditional legal analysis.
June 16, 2009
June 12, 2009
For some time now, there has been a well-organized effort to severely restrict, if not abolish, coal mining in West Virginia. Up until the last two to three years, this movement has been led by groups such as the Ohio Valley Environmental Coalition (OVEC) and other regional groups whose members include at least some West Virginians.
June 9, 2009
June 4, 2009
For months now, insurance giant American International Group (AIG) has teetered on the verge of collapse, despite being the recipient of an unprecedented taxpayer bailout that now exceeds $170 billion.
June 4, 2009
During the 2009 Special Session of the Legislature, Senate Bill No. 1006 was approved. The Bill is now pending the Governor's signature.  The Bill creates major changes  to W. Va. Code §§ 18A-2-2, 18A-2-6 and 18A-2-7. As we all know, these statutes related to Reductions-in-Force ("RIF") and Transfers (a/k/a "March Madness").
June 3, 2009
In the aftermath of the Sago and Aracoma mine disasters, the Mine Improvement and New Emergency Response Act of 2006, (“MINER Act”), created new stringent enforcement measures with the announced goal of promoting safer mining practices. One of these measures allows the Mine Safety and Health Administration (“MSHA”) to issue individual penalties of up to $220,000 for violations of mine safety or health standards deemed to be “flagrant.”
June 3, 2009
An issue that arises every summer for counties relates to summer employment and summer seniority for service personnel. W. Va. Code § 18-5-39(f) addresses the establishment of summer school programs.
June 1, 2009
June 2009
May 29, 2009
U.S. Immigration and Citizenship Services (USCIS) has updated the number of FY2010 H-1B petitions received as of May 22, 2009:  approximately 45,700 H-1B cap-subject petitions have been received.  The statutory limit in the “basic degree” category is 65,000.  USCIS indicated that it has received approximately 20,000 petitions qualifying for the “advanced degree” cap exemption.
May 21, 2009
On April 21, 2009, the Tenth District Court of Appeals ruled in favor of a Dayton subcontractor in a general contractor’s lawsuit asserting claims for breach of contract, promissory estoppel, and detrimental reliance.  The Court rejected the contractor’s attempted bid shopping of the structural steel contract for a construction project involving a highway on-ramp and exit for SR 315 in Columbus.
May 20, 2009
May 18, 2009
The U.S. State Department’s June 2009 Visa Bulletin reflects a retrogression of more than four years in the Employment Second Preference for India.  The Employment First and Third Preference categories remain unchanged compared to the May 2009 Visa Bulletin.
May 18, 2009
The elevated enforcement actions of sections 104(b), 104(d), 104(g), and 107(a) of the Mine Act continue to be well-used hammers in MSHA's arsenal. According to MSHA's own numbers, elevated enforcement actions by the agency against coal operators are up 142 percent from calendar year 2000 to 2008, and up 19 percent from 2006 to 2008. Along with more elevated paper comes increased penalties, often in startling amounts.
May 15, 2009
Foreign businesses may enter the Ohio market in a variety of ways, ranging from joint ventures with Ohio or other U.S. entities, mergers or acquisitions with strategically aligned partners, or the direct presence through one of the various business vehicles available, which range from branch offices to various types of partnerships, to limited liability companies and corporations.
May 12, 2009
May 5, 2009
Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 ("MMSEA") (P.L. 110-173), adds new mandatory reporting requirements for group health plan (GHP) arrangements and for liability insurance (including self-insurance), no-fault insurance, and workers compensation. See 42 U.S.C. 1395y(b)(7) and (8).
May 5, 2009
On April 18, 2009, the Centers for Medicare & Medicaid Services (CMS) Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) competitive bidding program became effective. The implementation of the competitive bidding program represents a sea change in the way DME will be furnished to Medicare beneficiaries and should be of acute interest to DME suppliers servicing beneficiaries located in ten selected cities and their surrounding areas, including Cincinnati, Cleveland and Pittsburgh.
May 5, 2009
On April 30, 2009, the Federal Trade Commission ("FTC") announced that it will again delay enforcement of the second section of the Red Flags Rule (16 C.F.R. § 681.2) which will require many health care providers to implement programs that identify and respond to indicators of potential identity theft ("Red Flags"). The enforcement deadline of May 1, 2009 has been extended to August 1, 2009. The FTC delayed enforcement of the Red Flags Rule to give creditors and financial institutions three more months to develop and implement written identity theft prevention programs.
May 4, 2009
The United States Court of Appeals for the Sixth Circuit recently affirmed in part and denied in part the lower court’s decision regarding association and advocacy claims. In association and advocacy claims, the plaintiffs are not members of a protected class but claim they were discriminated against because they are friends with or spoke out on behalf of members of a protected class. In Barrett v. Whirlpool Corp., No. 08-53-7, 2009 U.S. App. LEXIS 3443 (6th Cir. Feb. 23, 2009), three former employees of Whirlpool Corp. (“Whirlpool”) brought suit under Title VII and § 1981 alleging that they were discriminated and retaliated against on the basis of their association with and advocacy for African-American co-workers. This case brings light to another avenue of employment discrimination law with which employers need to be aware.
May 1, 2009
House Bill 3146 completed legislation and is awaiting the Governor's signature. House Bill 3146 amends W. Va. Code §18A-4-8b, which as we all know, deals with seniority rights for service personnel. At first glance, the initial amendment to 18A-4-8b does not appear to be a significant change in the way service personnel are employed, but the change is important.
April 30, 2009
For the first time in several years, the annual fiscal year H-1B “cap” was not reached in the first week of filing eligibility. Historically, U.S. Citizenship and Immigration Services (USCIS) received on the first day (last year redefined as the first week) of April more petitions than it had slots available for the entire year. USCIS then resorted to a "lottery system" to allocate those slots. According to USCIS, as of April 20th, there are still 21,000 slots available for fiscal year 2010 H-1B cap-subject cases.
April 27, 2009
Federal healthcare continuation coverage requirements (generally referred to as "COBRA") generally do not apply to group health plans sponsored by employers with fewer than 20 employees. However, The American Recovery and Reinvestment Act of 2009 ("ARRA"), does not limit its premium subsidy provisions to federally mandated COBRA coverage. The ARRA subsidy also applies to State programs that provide comparable continuation coverage (so-called "Mini-COBRA" laws). In response to ARRA, some states have lengthened the period of coverage, some states have added a second chance to enroll, and other states have proposed legislation to provide for continuation coverage for the first time.
April 24, 2009
Historically, pharmaceutical companies have enjoyed some success in arguing that state law failure-to-warn claims are pre-empted by the Food Drug & Cosmetics Act (“FDCA”) and federal regulations. However, on March 4, 2009, the United States Supreme Court announced limitations regarding the applicability of the preemption defense to a pharmaceutical company in Wyeth v. Levine.
April 23, 2009
When a trial court grants partial summary judgment on an insurance coverage issue, a key question presented is whether the court's ruling can be immediately appealed. In a recent 6 to 1 decision, the Ohio Supreme Court concluded that, where a duty to defend is not at issue, an order declaring that there is coverage under a policy, but not awarding damages, is not final and appealable.
April 20, 2009
The U.S. State Department’s May 2009 Visa Bulletin reflects unavailability of visa numbers in the Employment Third Preference across all chargeability areas (meaning, all countries). There is no change in the Employment Second Preference for China and India, and the remaining chargeability areas remain current.
April 17, 2009
Chapter 15 of the United States Bankruptcy Code, 11 U.S.C § 101 et seq., which incorporates most of the provisions of the United Nations’ Model Law on Cross-Border Insolvency,[1] was enacted as part of the Bankruptcy Abuse and Consumer Protection Act of 2005. Chapter 15 replaced former 11 U.S.C. § 304, which was been enacted in 1978 to provide specific procedures by which a representative in a foreign bankruptcy proceeding could obtain relief in U.S. courts to facilitate the foreign bankruptcy proceeding.
April 17, 2009
Dinsmore & Shohl will sponsor a forum and luncheon to be held in Dayton on April 21, 2009, featuring comments by Lieutenant Governor Lee Fisher. Mr. Fisher's presentation, "Ohio's International Trade Opportunities and Challenges," will follow a panel forum of local professionals experienced in international trade, who will discuss trade opportunities, particularly for those in the Dayton region.
April 16, 2009
Last year, the Ohio Supreme Court did not accept for review Appellants Charles and Beverly Datkuliak's ("Datkuliaks") appeal from the Seventh District Court of Appeals' decision in Am. Energy Corp. v. Datkuliak, 7th Dist. No. 07 MO 3, 2007-Ohio-7199. In doing so, the intent of the parties to a 1922 coal severance deed remained binding on successor parties in interest, instead of the consideration of irrelevant oil, gas, and farming interests across the state.
April 16, 2009
With the alarming rise of identity theft in recent years, Congress and federal regulators passed new laws aimed at protecting consumer account information in a variety of industries, including health care. Many health care providers must take steps to comply with the new “Red Flags” Rule, passed by Congress in the Fair and Accurate Credit Transactions Act of 2003. Compliance with Red Flags Rule is not difficult, but noncompliance can be costly with civil monetary penalties of $2,500 per violation.
April 16, 2009
On December 22, 2008, there was a massive failure of a retention wall at a coal ash containment area at the Tennessee Valley Authority (TVA)'s "Fossil Plant," located near Kingston, Tennessee. As a result of the breach, more than 5 million cubic yards of coal ash were released, covering an area of approximately 275 acres, including some 40 homes. Thankfully, there were no reports of injuries.
April 16, 2009
The basic requirements of any hazard communication system is to decide if the chemical product produced or supplied is hazardous and to prepare a material safety data sheet (MSDS) and label as appropriate. The general objective is to ensure that employers and employees have ready access to information regarding the hazards of chemicals used in their workplaces. The federal government will soon fundamentally change how chemical manufacturers and users prepare and communicate hazard information with OSHA's much-anticipated adoption of GHS.
April 16, 2009
April 15, 2009
April 14, 2009
As a following up on a story published in USA Today in December, 2008, the Environmental Protection Agency ("EPA") announced in late March, 2009 that it will implement air monitoring outside 62 schools nationwide where preliminary modeling shows there is a risk of high levels of hazardous air pollutants.
April 10, 2009
In recent weeks, both the Department of Labor and the Department of the Treasury have issued further guidance regarding the COBRA premium subsidy provisions under The American Recovery and Reinvestment Act of 2009 ("ARRA"). This Benefits Alert summarizes some of the key points in recent guidance and some common questions asked by employers and health plan administrators as they prepare to provide ARRA compliant COBRA notices by April 18, 2009.
April 2009
April 2009
April 1, 2009
Published annually in three separate volumes, MLRC's 50-State Surveys are 1000+ page reference texts that provide comprehensive coverage of the 50 states, the District of Columbia, the U.S. territories, the U.S. Federal Courts, Canada (media libel and privacy volumes) and England (media libel).
April 1, 2009
April 1, 2009
March 31, 2009
Effective April 3, 2009, employers must use the 02/02/2009 edition of Form I-9 when verifying and reverifying the employment eligibility of their employees. The current edition of Form I-9, dated 06/05/2007, must continue to be used through April 2, 2009, but will no longer be valid for use on or after April 3, 2009.
March 20, 2009
Soon, all businesses from Animal feedlots to Zinc production and countless operations in-between (cement production, coal mining, electronics manufacturing, food processing, pulp and paper manufacturing, solid waste management, wastewater management, etc.) will be required to calculate and report to the U.S. EPA the amount of greenhouse gases (GHGs) their facilities emit.
March 20, 2009
While the availability of immigrant visas for the employment-based second category reflected no change from March to April, employment-based third category posted a 26-month retrogression for the worldwide chargeability and the Philippines, and a five-and-a-half-month retrogression for Mexico. Nationals of China and India received better news with an advance in cut-off dates by four-and-a-half months and one month, respectively.
March 18, 2009
Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 ("MMSEA") added new mandatory reporting requirements for group health plans. The purpose of the Section 111 reporting requirements is to enable the Centers for Medicare & Medicaid ("CMS") to determine primary versus secondary payer responsibility.
March 10, 2009
March 10, 2009
Litigation is something most businesses don't like to think about let alone plan for. However, a recent West Virginia Lawyer Disciplinary Board action suggests businesses - and their attorneys - may want to do just that, specifically in the context of electronic or e-discovery.
March 9, 2009
When an insurance company becomes insolvent, one key issue is the extent to which the insurer's liquidator may recover prior payments made by the insurer. On February 23, 2009, the Supreme Court of Pennsylvania issued a significant decision limiting such recoveries. The court held that payments made by a failed Pennsylvania insurance company in the ordinary course of business are not recoverable by the statutory liquidator of the insolvent insurer.
March 6, 2009
On January 26, 2009, the United States Supreme Court expanded an employee's right to bring whistle blowing retaliation lawsuits against their employers. In Crawford v. Metropolitan Government of Nashville and Davidson County, TN, the Supreme Court held that an employee who answers questions during an employer's internal investigation may be "opposing" an employment practice prohibited by an employment statute.
March 6, 2009
Six months ago, I would have bet my 401(k) plan that the Employee Free Choice Act (EFCA) would pass in the first 100 days of an Obama Administration. Who knew the economy would so effectively pummel both my 401(k) and EFCA at the same time. It is now a month into President Obama's first 100 days and no one is still predicting the fast passage of EFCA. However, it is still likely that there will be changes beneficial to unions in the coming months, even without immediately passing amendments to the National Labor Relations Act, like EFCA.
March 5, 2009
At the end of 2008, the Centers for Medicare & Medicaid Services ("CMS") took a significant step toward the implementation of a new audit program that affects countless Medicare providers. Under the Tax Relief and Health Care Act of 2006, Congress authorized the Recovery Audit Contractor Permanent Program (the "RAC Program"). Under the RAC Program, private companies selected by CMS will serve as Recovery Audit Contractors ("RACs"). RACs will be paid on a contingency-fee basis to identify and correct improper payments made under Parts A and B of Medicare. On October 6, 2008, CMS named the four new RACs: CGI Technologies and Solutions, Inc., Diversified Collection Services, Inc., Connolly Consulting Associates, Inc., and HealthDataInsights, Inc.
March 5, 2009
It has been two weeks since the President signed The American Recovery and Reinvestment Act of 2009 ("ARRA"). The Department of Labor ("DOL") and Internal Revenue Service ("IRS") have each dedicated pages on their respective websites to provide information about the COBRA subsidy… but what information can we glean from their pronouncements so far?
March 2, 2009
As you all know, there are specific statutory deadlines/requirements that must be followed in order to provide employees with appropriate due process rights. Of course you are faced with both professional and personnel related issues. A majority of the counties have had to RIF and/or Transfer a number of service personnel over the years, and likely again this year. The purpose of this month's memo is to give you some reminders as it relates to service personnel employees:
March 2009
March 1, 2009
The Surface Mining Control and Reclamation Act of 1977 (“SMCRA”) is