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Paul Zimmerman

Showing 16 posts from June 2016.

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NY Employer Alert: Human Rights Division Expands Scope of Discrimination Law

Ben Franklin advised colonists to "Be civil to all; sociable to many; familiar with few; friend to one; enemy to none." He may have offered similar advice today, following the adoption of a new regulation by the New York State Division of Human Rights, prohibiting discrimination based on an individual’s relationship or association with a member of a protected class. The regulation applies to all areas of the New York State Human Rights Law, including public accommodations, employment, purchase or rental of housing or commercial property, access to educational institutions, and credit. Notably, under this new “associational discrimination” theory, an employee may support a claim before the Human Rights Division based on the assertion that she was discriminated against because of the characteristics, activities and beliefs of her friends or family. (Read More)

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Julia Child Foundation Sues Airbnb for Using Her Name Without Permission

The charitable foundation representing the estate of famed chef, culinary author and TV personality Julia Child, has sued Airbnb because the company used Child’s name and likeness for a Memorial Day promotion without the foundation’s permission. The foundation owns all rights of publicity of and associated with Julia Child, and maintains a strict policy of prohibiting the use of her name or likeness to market or sell commercial products (as was Ms. Child’s preference during her lifetime). (Read More)

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Justice Department Announces Unprecedented National Health Care Fraud Takedown

In what is being billed as the largest coordinated Medicare fraud takedown in Justice Department history, Attorney General Loretta E. Lynch and Department of Health and Human Services (HHS) Secretary Sylvia Mathews Burwell have announced an unprecedented nationwide sweep led by the Medicare Fraud Strike Force. The result is criminal and civil charges against 301 individuals for their alleged participation in health care fraud schemes involving approximately $900 million in false billings. This is but the latest example of the government increasing its scrutiny of Medicare reimbursement claims, and using its considerable leverage, and the media, to tighten the screws on health care providers. (Read More)

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CA Insurance Commissioner Urges U.S. Justice Department to Block Merger of Aetna and Humana

The proposed $37 billion merger of health insurance giants Aetna and Humana has faced several regulatory and antitrust hurdles since it was announced in July 2015. Aetna’s proposed acquisition of Humana also coincides with another health insurer deal in which Anthem Inc. agreed to buy Cigna Corp. If both mergers are approved, it would reduce the number of major national health insurance companies to three: Aetna, Anthem and UnitedHealth Group Inc. Stakeholders have kept a watchful eye on California, curious as to how key insurance regulators would respond to the proposed merger. Now, California Insurance Commissioner Dave Jones has issued a finding that the Aetna and Humana merger is anti-competitive. Jones formally recommended the Department of Justice block the proposed merger of Aetna and Humana. (Read More)

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Mobile Advertising Company Settles FTC Charges It Tracked Consumers’ Locations Without Permission

InMobi, a Singapore-based mobile advertising company that allegedly tracked the locations of hundreds of millions of consumers – including children – without consent, will pay $950,000 in civil penalties and implement a comprehensive privacy program to settle Federal Trade Commission (FTC) charges. While InMobi claimed that its software collected geographical whereabouts only when end users provided opt-in consent, the FTC contends that the software in fact used nearby Wi-Fi signals to infer locations when permission was not expressly given. (Read More)

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Health Care Provider Alert: Supreme Court Issues Landmark Ruling on False Claims Act

The Supreme Court has reached a significant decision that will substantially affect health care billing, but in an effort to breed uniformity, the Court appears to have actually facilitated even greater uncertainty. Last week, the United States Supreme Court issued its opinion in Universal Health Services v. Escobar, effectively approving the “implied false certification” theory of liability under the False Claims Act (FCA) and establishing a standard legal test in light of conflicting lower court decisions. Under the implied false certification theory, a provider that submits a claim for payment implicitly certifies compliance with all “conditions of payment,” potentially arising from statutory, regulatory, or contractual requirements. The Supreme Court adopted this theory, but with certain significant caveats. (Read More)

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Alexandr Shirokov ©

Help Yourself: Mass. Court Approves Employee’s Self-Help Discovery in Discrimination Case

The Massachusetts Supreme Court has ruled that an attorney’s search for confidential firm documents in an effort to prove a discrimination claim against her employer may constitute protected activity.  The Court, in Verdrager v. Mintz Levin Cohn Ferris Glovsky & Popeo PC et al. (case number SJC-11901, May 31, 2016), held that such actions are sometimes protected by the law, “but only if the employee's actions are reasonable in the totality of the circumstances.” It also found that lawyers are not automatically barred from collecting documents for a discrimination lawsuit merely because of attorney-client confidentiality and privilege. While the case involves an attorney and her former law firm, the ruling has general applicability to all employer-employee relationships. (Read More)

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Taken for a Ride: Under-Fire Uber Pays the Price

A recent settlement between Uber and the Los Angeles and San Francisco County District Attorneys Offices presents an interesting opportunity to examine the tools available to California law enforcement to police potentially false or deceptive advertising and the different ways in which Uber and its main competitor, Lyft, responded to nearly identical complaints by government regulators. (Read More)

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Electronic Health Records Company Settles FTC Charges It Misled Consumers 

The U.S. Federal Trade Commission (FTC) has entered into a proposed settlement with Practice Fusion, the largest cloud-based electronic health records company in the country. The company solicited physician reviews from patients, leading them to incorrectly assume that their written commentary would be communicated confidentially to the physician who treated them when, in fact, it was posted online. Under the settlement, FTC will prohibit the company from making deceptive statements about the privacy or confidentiality of the data it collects, and will also require it – prior to making any consumer information publicly available – to "clearly and conspicuously disclose this fact" and obtain affirmative consent. (Read More)

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Wendy’s Data Breach Expands in Scope, Malware Attacks Point-of-Sale System

Fast-food chain, Wendy’s, has disclosed that the number of franchised restaurants hit by a recent cyber-attack was “considerably higher” than the fewer than 300 locations that it had originally suggested were impacted. Wendy’s states that it has discovered an additional strain of malware that affected previously unidentified franchises. As cyber-attacks continue to rise within the retail sector, the particular vulnerability of franchised hospitality establishments comes into focus. (Read More)