Client Alerts

Opting not to list the northern long-eared bat as endangered as originally proposed in its October 2, 2013 proposed rule, the U.S. Fish and Wildlife Service (F&WS) instead listed the northern long-eared bat as “threatened”. Facing a deadline for the listing, the F&WS also issued an interim 4(d) rule providing for the incidental take exemptions as originally proposed, while opening the comment period to consider additional exemptions down the road in a final rule.

The United States Supreme Court issued a 52-page decision yesterday in Young v. United Parcel Service, Inc., clarifying an employer’s obligation to accommodate pregnant workers. A divided Supreme Court ruled that pregnant workers can claim the same accommodations that their employers grant to large numbers of workers who have similar but non-pregnancy related restrictions.

The Supreme Court Weighs In

Reversing the Eighth Circuit, the Supreme Court held that issue preclusion applied to this trademark matter. The district court is bound by the holding of the administrative body of Trademark Trial and Appeal Board (TTAB). In particular, whether Hargis’s Sealtite was “confusingly similar” to B&B’s registered trademark Sealtight had been decided affirmatively by the TTAB, and was not available for re-litigation in the courts.

Under the Sixth Circuit's Hi-Lex decision, hundreds of current and former self-insured customers of BCBSM may be entitled to reimbursement of unlawful hidden fees.

BCBSM is relying on ERISA's statute of limitations to stem the tide of lawsuits.

Current and former self-insured customers of BCBSM should immediately determine if they were charged hidden fees and, if so, how much time they have left under ERISA’s statute of limitations to recover those fees.

The Family Medical Leave Act (“FMLA”) provides leave rights for employees and, in various situations, provides for leave rights relating to family members, including an employee’s “spouse”. Currently, the Department of Labor (“DOL”) FMLA regulations define “spouse” as a husband and wife as defined for purposes of marriage by the laws “in the state where the employee resides.” Effective March 27, 2015, the regulatory definition of “spouse” will change. Going forward, the validity of a marriage for FMLA purposes will be determined based upon the laws of the “place of celebration” of the marriage rather than the location where the employee resides at the time he or she requests FMLA leave.

In a message to the Michigan Legislature and the citizens of Michigan last week, Governor Rick Snyder set forth his vision and agenda for guiding Michigan’s energy policy for the next 10 years. Citing a critical need to prevent widespread outages due to lack of supply as aging coal plants are taken out of service, Snyder’s vision puts significant emphasis on eliminating energy waste as a large part of the solution. Setting forth a number of “Calls to Action”, the Governor proposes:

On Tuesday, March 10, 2015, Sens. David Vitter (R-LA) and Tom Udall (D-NM) introduced long awaited legislation to reform the decades old Toxic Substances Control Act (TSCA) chemical regulation.

Recently, the Securities and Exchange Commission levied $16 million in penalties against Goodyear Tire and Rubber Company under the Foreign Corrupt Practices Act in consequence of bribes paid by Goodyear's subsidiary companies in Angola and Kenya between 2007 and 2011. In addition to the matter of its subsidiaries’ payment of bribes (and then booking those bribes as legitimate business expenses), the SEC faulted Goodyear (the parent company) for not having a Compliance Program adequate to prevent the illegal payments by its subsidiaries.

Michigan House Bill 4198, recently introduced by State Representative Lucido (R-Washington Township), doesn’t just severely restrict non-compete clauses in employment agreements, it seeks to ban them outright.

The U.S. Citizenship and Immigration Services has announced a new rule allowing certain spouses of H-1B worker to apply for employment authorization. The rule takes effect on May 26, 2015.

In December 2012, Michigan enacted separate right-to-work statutes for both the private sector, Public Act 348, and the public sector, Public Act 349. But the right-to-work statutes did not take effect until March 28, 2013, and they permitted employers and unions to retain and enforce union security clauses that were contained in agreements before March 28, 2013. For that reason, before that March 28, 2013 effective date, labor unions, in both the private sector and the public sector, sought to negotiate lengthy extensions of the union security clauses, which require an employee to become and remain a union member as a condition of employment. The unions’ purpose was to delay the effect of the right-to-work law and, consequently, the ability of union members to discontinue their mandatory union membership under that law.

The Michigan Legislature recently enacted legislation outlining a property owner’s liability for the injury or death of a trespasser. Although the statute is technically “new,” the legal principals expressed by the legislature simply mirror those applied by Michigan courts for decades, developed through case law.

Recently, we were retained to represent a non-U.S. parent corporation which had encountered employee benefits difficulties due to its acquisition of two completely unrelated U.S. businesses. The difficulties arose due to a concept known as a “controlled group” – a concept unique to the employee benefits and tax arenas. First, we very briefly discuss the controlled group concept. Then we very briefly list some implications of entities being part of the same controlled group. We conclude by suggesting that when purchasing U.S. businesses, non-U.S. companies should retain employee benefits counsel to advise them on U.S. employee benefits issues.

In what might well be the beginning of a new wave of litigation arising out of the current epidemic of cyber breaches, Travelers Casualty and Surety Company of America has brought suit against Incognito Studios, a web designer, to recover payments Travelers paid to its insured, Alpine Bank, to cover losses caused by the breach of the bank’s confidential data by hackers. Travelers is suing as the assignee and subrogee of the bank. The Complaint alleges that the web designer was negligent by, among other things, not placing adequate anti-malware software on the bank’s server, not disabling one or more websites of other customers running on the same server, and failing to maintain adequate encryption of bank customer data.

In this world of connectivity, automobiles become one large mobile device, transmitting and receiving data whether running or not. Whether you are a component manufacturer or a digital provider streaming content into the vehicle, there are new concerns surrounding tracking and hacking that may put American drivers at risk.

Michigan labor unions have filed several lawsuits challenging the legality of Michigan’s right-to-work laws for the private sector and the public sector. One lawsuit filed by labor unions and some anti-right-to-work politicians claimed that the laws should be invalidated under Michigan’s Open Meetings Act. The OMA requires that meetings be “open to the public,” MCL 15.263, but does not define that phrase. On February 6, 2015, the Michigan Court of Claims, by Judge Deborah Servitto, dismissed the unions’ lawsuit in its entirety. The legality of the right-to-work laws, in other words, survived this union challenge under the Open Meetings Act.

The deep freeze that has been sweeping across the nation is not the only chill in the air. On January 29, 2015, the U.S. Department of Health & Human Services, Centers for Medicare and Medicaid Services (“CMS”), extended for another 6-months the moratorium freezing enrollment of Home Health Agencies (“HHA”) and Ambulance Suppliers in federal healthcare programs, including Medicare, Medicaid, and CHIP. The Initial moratorium was effective January 30, 2014 and extended an additional 6 months in July 2014. A similar restriction has been in force in areas surrounding Chicago and Miami since July 2013.

The Federal Communications Commission recently issued a Policy Statement in which it announced a new methodology for assessing forfeitures (penalties) on service providers who fail to pay the annual federal regulatory fees and make timely contributions to the Universal Service Fund (USF), the Telecommunications Relay Service (TRS) Fund, and the cost recovery mechanisms for local number portability (LNP) and the North American Numbering Plan (NANP) collected by the Universal Service Administrative Company (USAC).

The current situation in the region of Syria and Iraq involving the Islamic State (ISIS) seems to worsen daily. The danger for America is very real, and extends beyond potential military hostilities or even terrorism. American businesses that export or are willing to export may be at heightened legal risk. Export Control regulations and related enforcement places a significant responsibility and associated risks on American individuals and companies. The penalties for export violations, both civil and criminal, can be (and often are) draconian; and “I didn’t know” has no weight as a defense or mitigating factor where penalties for exports or technology transfer violations are involved.

The Federal Circuit held that the term “molecular weight” was fatally indefinite, rendering a patent for making Copaxone (a drug for treating MS) invalid. In Teva Pharmacueticals USA, Inc. v. Sandoz, Inc., 574 U.S. __, __ (2015), the Supreme Court vacated the Federal Circuit’s judgment.