The Biden administration's Department of Justice, Antitrust Division (DOJ) continues a practice largely begun under the Trump administration of intervening in private litigation and requesting permission to file statements of...more
Every case — criminal or civil — presents different issues for nursing homes and their administrators. We are likely to see more cases, particularly in the civil context, trying to hold nursing homes and their administrators...more
Why It Matters -
This is the first federal circuit court ruling to address federal removal jurisdiction based on PREP Act immunity. Although the nursing home lost its removal argument, the Third Circuit’s opinion may...more
Over the past five years, the Department of Justice (DOJ) and civil litigants have rigorously challenged the lawfulness of buy-side restraints of trade, including noncompetes, no-poach, and nonsolicitation agreements, under...more
The Second Circuit recently issued a decision in McMorris v. Carlos Lopez & Associates, LLC, No. 19-4310, 2021 U.S. App. LEXIS 12328 (2nd Cir. Apr. 26, 2021), which clarifies the circumstances under which plaintiffs alleging...more
The Supreme Court of Pennsylvania recently affirmed a Superior Court order in Pittsburgh Logistics Systems, Inc. v. Beemac Trucking, LLC et al., No. 31 WAP 2019, finding a no-hire provision between competing, sophisticated...more
Why It Matters -
The guidance relaxes and quells confusion around visitation guidelines created by the increasing prevalence and availability of vaccines for COVID-19....more
Since issuing its 2016 Antitrust Guidance affirming focus on enforcement of fair competition in labor-employment buy-side markets and warning of criminal remedies for those participating in illegal no-poach agreements, the...more
Why It Matters -
Businesses should begin to address these issues now so that when COVID-19 vaccines are ready for distribution, they will be too....more
12/16/2020
/ Americans with Disabilities Act (ADA) ,
Centers for Disease Control and Prevention (CDC) ,
Coronavirus/COVID-19 ,
Corporate Counsel ,
Department of Health and Human Services (HHS) ,
Emergency Use Authorization (EUA) ,
Employer Liability Issues ,
Food and Drug Administration (FDA) ,
Infectious Diseases ,
OSHA ,
Popular ,
Public Readiness and Emergency Preparedness Act (PREP Act) ,
Title VII ,
Vaccinations
Why It Matters -
This decision casts doubt on the ability of nursing homes to rely on the PREP Act to shield them from liability against state-law claims or, at the very least, to remove such claims to federal court....more
8/20/2020
/ CARES Act ,
Centers for Disease Control and Prevention (CDC) ,
Coronavirus/COVID-19 ,
Countermeasures ,
Health Care Providers ,
Immunity ,
Infectious Diseases ,
Medical Marijuana ,
Nursing Homes ,
OSHA ,
Preemption ,
Public Readiness and Emergency Preparedness Act (PREP Act) ,
Safety Precautions ,
Secretary of HHS ,
State Law Claims
On August 3, New York Gov. Andrew Cuomo signed legislation (New York S.B. 8335, enacted Aug. 3, 2020) that scaled back the immunity provisions enacted toward the beginning of the COVID-19 emergency for health care providers....more
8/11/2020
/ Coronavirus/COVID-19 ,
Criminal Liability ,
Criminal Prosecution ,
Executive Orders ,
Governor Cuomo ,
Gross Negligence ,
Health Care Providers ,
Healthcare Facilities ,
Healthcare Workers ,
Immunity ,
New Legislation ,
Relief Measures
The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), signed into law on March 27, 2020, allocated $100 billion to the Provider Relief Fund (Relief Fund) designated for hospitals and other health care providers...more
Are franchisees dependent offshoots of their franchisors, or are they standalone businesses capable of independent decision-making?...more
Many hospitals and health care systems are turning to out-of-state practitioners to quickly ramp up staffing to the levels necessary to respond to the COVID-19 pandemic....more
On April 13, the Federal Trade Commission’s Bureau of Competition and the Department of Justice’s Antitrust Division (the Agencies) issued a joint statement reiterating that antitrust laws protect U.S. labor markets even...more
Almost as soon as the COVID-19 outbreak began, public officials and media outlets raised concerns over price gouging. While price-gouging statutes and regulations are not new, they are invoked rarely because they apply only...more
On April 2, the Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) announced that, effective immediately, it will exercise its enforcement discretion over certain provisions of the HIPAA...more
On March 24, the Department of Justice and the Federal Trade Commission released a joint statement that provided guidance to companies interested in collaborating on efforts to “protect the health and safety of Americans...more
3/25/2020
/ Antitrust Provisions ,
Bulk Purchasing ,
Competition ,
Coronavirus/COVID-19 ,
Department of Justice (DOJ) ,
Federal Trade Commission (FTC) ,
Health and Safety ,
Price Gouging ,
Price-Fixing ,
Research and Development ,
Supply Chain
On July 11, the U.S. Department of Justice rolled out a new policy to encourage stronger corporate antitrust compliance efforts. Announced by DOJ Antitrust Division head Makan Delrahim in remarks at the New York University...more
7/18/2019
/ Antitrust Division ,
Antitrust Provisions ,
Antitrust Violations ,
Cartels ,
Compliance Management Systems ,
Corporate Culture ,
Corporate Misconduct ,
Criminal Prosecution ,
Department of Justice (DOJ) ,
Enforcement Guidance ,
Leniency Programs ,
Regulatory Reform ,
Rulemaking Process ,
White Collar Crimes
The Supreme Court recently clarified that third-party counterclaim defendants — parties who were not defendants in the original action, but were brought in as third-party defendants by virtue of the original defendant’s...more
5/30/2019
/ CAFA ,
Class Action ,
Co-Defendants ,
Counterclaims ,
Federal Rules of Civil Procedure ,
General Removal Provisions ,
Home Depot USA Inc v Jackson ,
Jurisdiction ,
Remand ,
Removal ,
SCOTUS ,
Third-Party
The U.S. Court of Appeals for the Third Circuit recently held, for the first time, that a mere procedural violation of a statute does not present the material risk of harm that a plaintiff must allege to establish Article III...more
3/14/2019
/ Appeals ,
Article III ,
Corporate Counsel ,
Data Protection ,
Debit and Credit Card Transactions ,
FACTA ,
Identity Theft ,
Injury-in-Fact ,
J Crew ,
Motion to Dismiss ,
Privacy Concerns ,
Putative Class Actions ,
Retailers ,
Standing ,
Statutory Violations
Can a pharmaceutical manufacturer provide free items or services to financially needy Medicare and Medicaid beneficiaries without running afoul of the Beneficiary Inducements Civil Monetary Penalty (CMP) or the Anti-Kickback...more
2/11/2019
/ Advisory Opinions ,
Anti-Kickback Statute ,
Beneficiary Inducement ,
Digital Health ,
Low-Income Issues ,
Medicaid ,
Medical Devices ,
Medicare ,
OIG ,
Patient Assistance Programs ,
Pharmaceutical Industry
Agreements among companies to not hire each other’s workers are more risky than ever. The DOJ’s Assistant Attorney General for the Antitrust Division, Makan Delrahim, stated on January 19 that the division has criminal cases...more
4/5/2018
/ Antitrust Division ,
Antitrust Provisions ,
Antitrust Violations ,
Corporate Counsel ,
Employer Liability Issues ,
Enforcement Actions ,
Fast-Food Industry ,
Franchise Agreements ,
Franchises ,
Hiring & Firing ,
Joint Venture ,
Legislative Agendas ,
No-Poaching ,
Proposed Legislation
While some defendants will view the Spokeo II decision as lowering the bar for standing, the recognition in Spokeo II and Groshek that a statutory violation alone does not automatically satisfy the concrete injury requirement...more
8/18/2017
/ Article III ,
Background Checks ,
Class Action ,
Employer Liability Issues ,
Fair Credit Reporting Act (FCRA) ,
Hiring & Firing ,
Injury-in-Fact ,
SCOTUS ,
Screening Procedures ,
Spokeo v Robins ,
Standing
Senators Mike Lee (R-UT), Ted Cruz (R-TX) and Ben Sasse (R-NE) recently introduced a bill that would extend a limited state action immunity to state licensure boards only if states implement reforms that reduce occupational...more