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Paul Zimmerman

Showing 12 posts from May 2016.

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Kheng Ho Toh ©

Looming Preemption: State Regulators Consider Ramifications of U.S. / EU Bilateral Insurance Agreement

Earlier this month at the National Association of Insurance Commissioners (NAIC) Insurance Summit, a panel of regulators – Tennessee Commissioner Julie McPeak, Maine Superintendent Eric Cioppa, and Iowa Commissioner Nick Gerhart – discussed key regulatory initiatives being addressed at the NAIC. One such issue is the role of covered agreements negotiated by federal representatives with the European Union (EU) and other foreign powers, and the effect such agreements could have on the US regulatory system. Last fall, the U.S. Department of the Treasury and the Office of the U.S. Trade Representative (USTR) announced their intention to begin negotiating a covered agreement with the EU.  Under the Federal Insurance Office (FIO) Act, the Secretary of the Treasury, through the FIO, and USTR are authorized to jointly negotiate a covered agreement with one or more foreign governments, authorities, or regulatory entities. The NAIC, as a body focused on state-based regulation, is concerned about the possible preemptive effects such agreements could have. (View More)

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stillfx ©

Employer Alert: DOL Announces Final Rule Expanding Overtime Pay

President Barrack Obama and United States Department of Labor (DOL) Secretary Tom Perez have announced the publication of the Department of Labor’s final rule updating DOL overtime regulations, increasing the annual salary threshold that generally determines who qualifies for overtime pay under federal law.  The salary threshold will be doubled to $47,476 a year from $23,660. (Read More)

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alexskopje ©

Insurers Take Notice: Ninth Circuit Rules that EPA Request Letter Triggers Duty to Defend

On May 11, 2016, the Ninth Circuit Court of Appeals ruled that a general liability insurer owed a duty to defend an environmental matter even though no suit had technically been filed.  Ash Grove Cement Co v. Liberty Mutual Insurance Co, et al. (13-35900, 9th Cir. 2016). Pursuant to its authority under section 104(e) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), the Environmental Protection Agency (EPA) will, as part of its investigation of a Superfund site, typically issue an information request to any person or entity that it believes to have information regarding the release of hazardous substances at the site. The Ash Grove Cement decision establishes that a”104(e) letter” is a “suit” under Oregon law, immediately triggering an insurer’s obligation to defend. This significant Ninth Circuit precedent may impact Superfund-related proceedings well beyond Oregon, and insurance companies will surely be taking notice. (Read More)

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California Court of Appeals Approves Electronic Signatures on Arbitration Agreements 

It has become increasingly common for companies to have new employees sign important documents – including contracts and arbitration agreements – using electronic signatures. In light of this fact, some employers have recently faced challenges from employees in court regarding the authenticity of such signatures and the general validity of online employee orientation platforms. A new California Appellate Court ruling provides some clarity in this area. (Read More)

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Jason Speros ©

Class Action: Supreme Court Rules That Federal Plaintiffs Must Show a “Concrete” Injury

Some may view it as a blow to consumer class actions, while others might characterize it as an example of a high court “punting” on a key issue, but regardless of one’s characterization, the United States Supreme Court’s 6-2 decision in Spokeo Inc. v. Robins is reverberating throughout the legal community. In a long awaited opinion, the Supreme Court vacated a Ninth Circuit ruling that had deemed so-called technical violations of the Fair Credit Reporting Act (“FCRA”) sufficient to establish an injury-in-fact for purposes of satisfying the standing requirements to bring a lawsuit under federal jurisdiction. According to the Supreme Court, the Ninth Circuit’s standing analysis was not complete because it failed to consider whether the alleged injury was “concrete.” The Supreme Court has remanded the case to the Ninth Circuit to re-consider the standing issues in light of the Court’s guidance. While the Court may have refused to decide the underlying issue of standing, it did make a significant, and potentially momentous, finding that could curtail the spread of consumer class action lawsuits in which lead plaintiffs identify no actual harm from the violation of a statute. (Read More)

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Medicare Rolls Out Proposed Rule Altering Physician Payment Model

The Centers for Medicare & Medicaid Services (CMS) recently released a proposed rule discussing how it intends to implement the Medicare physician payment reforms enacted as part of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). Congress voted to essentially scrap the existing Medicare physician payment formula, and transition to a new system focused on quality, value and accountability. The new model is ostensibly intended to close performance gaps in clinical care, safety, care coordination, patient and caregiver experience, population health and prevention, and affordable care. Hospitals, physicians and other providers, now have until June 27, 2016 to comment on the proposed rule. (View More)

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lightwise ©

New Federal Trade Secret Law: Key Takeaways for Employers

Congress recently passed the Defend Trade Secrets Act (DTSA) which, for the first time, allows companies to file civil lawsuits for theft of trade secrets under federal law. On Wednesday, May 11, President Barrack Obama signed the legislation into law. The DTSA does not pre-empt existing state laws, including California, which previously codified the Uniform Trade Secret Act (UTSA), a model statute. The new federal legislation does, however, provide plaintiffs with a federal private right of action for trade secret claims, enabling companies to sue in federal court for damages related to theft of trade secrets. The DTSA is also significant to California employers in that it imposes specific rules and regulations with regard to whistleblower immunity. In light of these significant requirements, employers should review their agreements, handbooks and procedures to ensure compliance with this pending legislation. (Read More)

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Rossella Apostoli  ©

CA State Legislature Clamps Down on Residential Treatment Centers

The existence of residential sober living homes and other treatment centers located in residential neighborhoods has recently attracted the attention of many media outlets and has become a hot button topic on both sides of the argument. The California State Assembly’s Health Committee has now approved two separate bills which would impose stricter regulations on these facilities. (Read More)

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Be Warned: Prop 65 Emergency Regulation on BPA Takes Effect

A new Proposition 65 requirement takes effect today, May 11, 2016. It requires all California hotel and lodging businesses with 10 or more employees to display a warning for all canned and bottled foods and beverages offered for retail sale that may contain Bisphenol A (BPA). BPA is still commonly used in the packaging of food and beverage items sold by retailers throughout California. It is most often found in the interior lining of metal-based food and beverage containers, as well as lids for glass jars and bottles. Companies that sell canned and bottled food or beverages – whether in a sundry or through catering services – are required to post the Prop 65 warning. (View More)

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radiantskies ©

Consumer Agency Proposal Would Expose Banks to More Class Action Lawsuits

Under new rules proposed by the Consumer Financial Protection Bureau (CFPB), consumers would be handed greater ability to bring class action lawsuits against financial institutions and consumer financial services providers. The proposed rules would essentially prohibit the use of mandatory arbitration clauses that contain class action waiver provisions in contracts for consumer financial products and services. The CFPB’s publicized objective is to prohibit consumer financial services providers from using arbitration provisions to prevent consumer class action lawsuits. Covering a range of products, from bank accounts and credit cards to auto and student loans, the rules are ostensibly intended to enable customers to utilize the court system to challenge potentially deceitful practices or other improper conduct. There will now be a 90-day public comment period, which will surely be contentious; the consumer finance industry immediately voiced strong concerns with the CFPB’s proposal. (Read More)