LexUniversal | News

United States: Increased Interest in Electronic Health Records Donations

2008-08-20

In 2006, the Centers for Medicare and Medicaid Services (“CMS”) created an exception to the Stark Law that allows hospitals and other entities to offer substantial non-monetary subsidies, in the form of software and related training and support services, to implement electronic health records systems. These regulations permit hospitals and many other organizations to pay up to 85% of the cost of electronic health record software and related services for physicians. Under the electronic health records exception, physician practices must pay 15% of the value of any donations and any software must be used predominantly for electronic health records purposes. As electronic health records become more widespread, the utilization of this exception has increased significantly. If you have any questions about the application of the electronic health records exception, please contact Yvette Rhodes for more information.

United States: California court rules doctors cannot deny treatment to gay patients on religious grounds

2008-08-20

The Supreme Court of California ruled Monday that gay and lesbian patients cannot be denied medical treatment because of doctors’ religious beliefs. The issue came before the court in a case where a lesbian couple who were denied an artificial insemination procedure by a clinic claimed the refusal violated anti-discrimination provisions in California’s Unruh Civil Rights Act. The clinic and doctors who were the defendants in the case claimed that under both the California Declaration of Rights and the US Constitution, their right to free exercise of religion permitted them to refuse treatment. constitutions as part of their right to exercise their religion. Disagreeing with this interpretation, the court wrote:

California’s Unruh Civil Rights Act, from which defendant physicians seek religious exemption, is “a valid and neutral law of general applicability.” As relevant in this case, it requires business establishments to provide “full and equal accommodations, advantages, facilities, privileges, or services” to all persons notwithstanding their sexual orientation. Accordingly, the First Amendment’s right to the free exercise of religion does not exempt defendant physicians here from conforming their conduct to the Act’s antidiscrimination requirements even if compliance poses an incidental conflict with defendants’ religious beliefs.

The court went on to say that physicians could avoid the conflict by simply refusing to practice the procedure at all or by asking another physician in their clinic to conduct the procedure.

In June, the court’s ruling which overturned a state ban on same-sex marriage took effect after withstanding challenges from both in-state conservative groups and out-of-state attorneys general who objected to the ruling because it also allows couples from others states to be married while in California. The ruling may still be overturned, however, as opponents have successfully petitioned to place a proposed state constitutional amendment banning same-sex marriages on the November ballot.

Japan: Mergers: Commission approves proposed merger between Kenwood and JVC

2008-08-20

The European Commission has cleared under the EU Merger Regulation the proposed merger between Kenwood Corporation of Japan and Victor Company of Japan (“JVC”), both providers of electronics equipment. After examining the operation, the Commission concluded that the transaction would not significantly impede effective competition in the European Economic Area (EEA) or any substantial part of it.

Kenwood is a global provider of electronics equipment. Its business focuses on three product categories: (i) car electronics, (ii) home electronics, and (iii) communication equipment (including handheld and mobile radios, transceivers, repeaters and base stations).

JVC is active world-wide in the research, development, manufacturing and sales of electronic products and accessories for private and professional use. JVC’s business includes audio, visual, computer-related electronics and software, and media products.

The Commission’s examination of the proposed transaction showed that the horizontal overlaps between the activities of Kenwood and JVC are limited in most markets, that the new entity would continue to face several significant competitors in the markets for car electronics, home electronics and mobile electronics and that customers would continue to have access to a sufficient number of alternative suppliers.

The Commission therefore concluded that the creation of the new entity would not give rise to any competition concerns in the markets concerned.

United States: Third Circuit rules FDA regulations do not bar state claim for mercury poisoning

2008-08-20

The US Court of Appeals for the Third Circuit ruled on Tuesday that existing US Food and Drug Association (FDA) regulations do not preempt a New Jersey woman’s state claim that she was poisoned by the mercury in canned tuna. The suit alleges that Tri-Union, producers of Chicken-of-the-Sea brand tuna, failed to warn consumers about the potential danger of mercury poisoning that resulted from the consumption of its products. The Third Circuit rejected Tri-Union’s argument that her claim was preempted by the FDA’s regulatory scheme regarding the presence of mercury in fish:

This is a situation in which the FDA has promulgated no regulation concerning the risk posed by mercury in fish or warnings for that risk, has adopted no rule precluding states from imposing a duty to warn, and has taken no action establishing mercury warnings as misbranding under federal law or as contrary to federal law in any other respect. [The] lawsuit does not conflict with the FDA’s “regulatory scheme” for the risks posed by mercury in fish or the warnings appropriate for that risk because the FDA simply has not regulated the matter.

The FDA has only issued a consumer advisory regarding the risks posed by mercury in fish and established a guideline regarding mercury concentrations to guide its enforcement decisions. Neither of these agency acts constitutes a federal legal standard or binding regulatory action on the subject which could give rise to a conflict, and indeed neither expresses a policy or viewpoint or approach inherently inconsistent with [the] lawsuit. In the final analysis, this case involves an agency effort to preempt an area of law traditionally within the states’ police powers
The case was remanded for further proceedings consistent with the court’s opinion.

In dismissing the claim, the district court relied on a letter sent by the FDA to then-California Attorney General Bill Lockyer after he filed a state suit against a number of tuna canners, including Tri-Union, for their failure to warn consumers that their tuna products contained dangerous mercury compounds in June 2004. The letter, signed by then-Commissioner of the FDA Lester Crawford, warned that Lockyer’s suit would “frustrate the carefully considered federal approach” regarding the regulation of mercury in fish. The Superior Court of California ultimately found that Lockyer’s suit was preempted by federal law in May 2006.

United States: DC Circuit strikes down EPA ban on state pollution monitoring

2008-08-20

The US Court of Appeals for the District of Columbia Circuit on Tuesday vacated a 2006 Environmental Protection Agency (EPA) rule prohibiting state and local governments from monitoring air pollution below acceptable levels set by the EPA for “stationary” sources such as power plants and factories. The court wrote that the rule violated Title V of the Clean Air Act because the EPA’s monitoring protocols themselves violated the Act, and because the rule prevented state and local governments from making up for its shortcomings. In the decision, the court posed the question facing local governments obligated to issue permits to the facilities:

... how should a permitting authority respond to an emission standard that has a periodic monitoring requirement inadequate to the task of assuring compliance? For example, suppose there is a standard that limits emission from a given stationary source to X units of pollutant per day. Suppose also that the standard requires annual monitoring. Where annual testing cannot assure compliance with a daily emission limit, may the permitting authority supplement the monitoring requirement “to assure compliance with the permit terms and conditions,” as the Act commands?

The EPA had argued that it had the discretion to decide what measures were or were not adequate under the Act, but the court disagreed:

Title V is a complex statute with a clear objective: it enlists EPA and state and local environmental authorities in a common effort to create a permit program for most stationary sources of air pollution. Fundamental to this scheme is the mandate that “[e]ach permit . . . shall set forth . . . monitoring . . . requirements to assure compliance with the permit terms and conditions.” By its terms, this mandate means that a monitoring requirement insufficient “to assure compliance” with emission limits has no place in a permit unless and until it is supplemented by more rigorous standards.

The EPA has recently faced increasing conflict with states seeking tighter pollution controls. In July, California Attorney General Jerry Brown formally notified the EPA that the state would file a lawsuit against the agency if it refused to issue rules regulating greenhouse gas emissions from vehicles as well as industrial and agricultural machinery. In January, California filed suit to appeal the EPA’s previous denial of a request for a waiver that would have allowed California and 16 other states to impose stricter greenhouse gas emissions standards on cars and light trucks. In May, a report by the US House Committee on Oversight and Government Reform found that the White House had influenced that decision and the administration later refused to turn over requested documents concerning the decision to the committee, citing executive privilege.

United States: Federal Prosecutors Target Florida’s “New Mafia” & Sophisticated White Collar Offenses

2008-08-20

When people think of organized crime, or the “mafia,” they typically think of illegal conduct including drug trafficking, extortion, gambling, prostitution and murder which are typically all prosecuted under the Racketeer Influenced and Corrupt Organization Act (RICO). However, today’s “new mafia” is much more sophisticated and engaged in legitimate business operations intertwined with fraud and money laundering. “They’re entrepreneurs,” according to an FBI supervisory agent who is an expert on organized crime in Chicago describing today’s mafia. Organized crime is simply a reference to orchestrated illegal activity for profit by a group of people associated together by a common unlawful purpose and “racketeering” is broadly defined as an illegal business operation for profit by an organized crime group. The key term is “profit” because racketeering is highly profitable and therefore, aggressively targeted by law enforcement through the RICO statute. The RICO statute was enacted in 1970 for the express purpose of combating organized crime and its negative effect on the American economy after the 1967 President’s Commission on Law Enforcement and Administration of Justice “The President’s Crime Commission” concluded that the annual income of organized crime was twice as much as all other criminal activities combined. The RICO statute enables prosecutors to target the “kingpin” responsible for operating an organized criminal enterprise notwithstanding the fact that he may not have directly participated in the criminal acts. Further, the RICO statute carries far more severe penalties than the underlying “predicate” crimes and authorizes the seizure and forfeiture of assets.

Although the “mafia” historically refers to the traditional American crime families of Sicilian descent, today’s “new mafia” characterizes any group involved in racketeering activity regardless of national descent. More importantly, if organized crime is motivated by the money, then it is likely that the “new mafia” will target Florida’s robust fraud industry, because “that’s where the money is.” A recent Florida Trend study determined that fraud collectively amounts to one of Florida’s largest industries topping $36 billion as a percentage of Florida’s GDP. More importantly, organized crime remains lucrative and today’s crime of choice for the mafia includes white collar offenses such as health care fraud, mortgage fraud, securities fraud and identity theft which have been added to the mafia’s traditional blue collar repertoire of criminal offenses. For example, the U.S Attorney for the Middle of District of Florida in Tampa recently indicted John “Junior” Gotti, Jr. for racketeering that included money laundering through a local nightclub, as well as murder. In addition, a Gambino crime family “captain” was convicted and sentenced to life in prison in 2006 for racketeering that involved the operation of valet car parking businesses in Tampa. According to the U.S. Attorney for the Southern District of Florida, “these people (fraudsters) are very entrepreneurial” and Florida’s fraud industry remains attractive to criminals because “the rate of return verses the criminal exposure” [remains high.] Another former U.S. Attorney for the Southern District of Florida states “people come here [Florida] to strike it rich, legitimately or otherwise.” While today’s “new mafia” includes more sophisticated white collar offenses, and Florida provides a ripe breeding ground for organized crime, it is clear that law enforcement’s weapon of choice for targeting organized crime, and lowering the “rate of return” on Florida’s fraud industry, remains the RICO statute.

United States: Exchanges Agree to Let FINRA, NYSE Investigate Insider Trading

2008-08-20

Ten exchanges agreed to consolidate their insider-trading surveillance and investigation efforts, turning over the responsibility to the regulation arm of the New York Stock Exchange and the Financial Industry Regulatory Authority. The arrangement will eliminate the overlap that frequently arose when each exchange ran its own surveillance program, and it gives NYSE Regulation and FINRA greater jurisdiction to enforce market rules, said Richard Ketchum, chief executive of NYSE Regulation and chairman of Washington-based FINRA.

United States: New Regulations Proposed for the Fair Labor Standards Act

2008-08-19

On July 28, 2008, the U.S. Department of Labor (DOL) proposed new regulations interpreting the Fair Labor Standards Act (FLSA). The DOL is accepting comments on the proposed regulations until September 11, 2008. The proposals are designed to conform the FLSA’s regulations with statutory amendments and court decisions issued over the past several decades.

The proposed regulation changes include:
• The inclusion of bonuses and premium payments in the calculation of overtime for employees with fluctuating workweeks;
• The exclusion of specified stock options from the regular pay rate;
• An update of the tip credit to reflect recent increases in the minimum wage;
• A clarification of the rules around the use of comp time by public employees;
• The addition of a “youth opportunity wage” of $4.20 an hour for employees under the age of 20 during their first 90 days of employment;
• An update of the various rules regarding firefighters, irrigation workers and boat salespersons;
• The exclusion of certain food bank volunteers from the definition of “employee.”

Click here to see all the proposals. For more information on these proposed regulations, contact Mark Addington.

Finland: Merger control (Finland): Finnish Competition Authority opens second phase investigation into the proposed acquisition of C More Group AB by TV4 AB

2008-08-19

The Finnish Competition Authority has opened a second phase investigation into the proposed acquisition of C More Group AB (“C more”) by TV4 AB (“TV4”), which belongs to the Bonnier group. The Bonnier group is an international media group based in Sweden. In Finland, the Bonnier group owns MTV Oy, which provides both free and pay-TV channels to the public. C More provides pay-TV channels under the brand Canal+ in the Nordic Countries. During these second phase proceedings, the FCA will examine whether the proposed acquisition would create or strengthen such a dominant market position that would significantly impede effective competition in the Finnish pay-TV market. The FCA has three months to make its final decision in the matter.

Source: The Finnish Competition Authority (www.kilpailuvirasto.fi) 8/8/2008

Russia: Russia to file complaint against Georgia with International Criminal Court

2008-08-19

Russian officials on Monday confirmed that the nation will file a complaint against Georgia with the International Criminal Court (ICC) and said that the government is considering filing another complaint with the International Court of Justice (ICJ). The filings would be related to war crimes allegedly committed against ethnic Russians in the breakaway region of South Ossetia. Russia’s Foreign Ministry has also called for Georgian President Mikhail Saakashvili to resign and be tried for war crimes before the ICC. Last week, Alexander Bastrykin, chairman of Russia’s Prosecutor General’s Office, said that his staff is collecting evidence of war crimes allegedly committed by Georgian forces in South Ossetia.

Last week, Georgia filed a complaint against Russia with the ICJ, alleging that invading Russian troops have engaged in murder, rape and mass displacement of civilians during the recent conflict between the countries. Georgia also accused Russia of ongoing violations of the 1965 Convention on the Elimination of All Forms of Racial Discrimination since 1990 based on its removal of ethnic Georgians from South Ossetia and Abkhazia. Georgia is seeking an ICJ order that Russia pay compensation, withdraw its troops, and allow all displaced ethnic Georgians to return home.

Russia: UN panel urges Russia to comply with racial discrimination convention

2008-08-19

The UN Committee on the Elimination of Racial Discrimination (CERD) on Monday called on Russia to take action against growing instances of ethnic violence and Neo-Nazi activity within its borders. CERD said that Chechens, Roma, and other ethnic and religious minorities are the most common victims and noted allegations that Russian police frequently refuse to intervene to stop such attacks. The panel also urged Russia to investigate reports that in 2006 officials forcibly deported ethnic Georgians living in Russia. Georgia has said that the incident reflected official state policy at the time and last week filed a complaint with the International Court of Justice (ICJ). Monday’s comments are related to CERD’s scheduled review of Russia’s compliance with the International Convention on the Elimination of All Forms of Racial Discrimination.

This is not the first time that Russia has been criticized for racist attacks. A January report issued by the SOVA Center rights group found that hate crimes in Russia rose 13 percent in 2007, but also found that police have done little to stop attacks. In June 2007, Human Rights First reported that hate crimes are on the rise throughout all of Europe, after conducting a study examining recent hate crimes in France, Germany, Russia, Ukraine, and the United Kingdom. That study found that Russia has a “proliferation of violent hate crimes directed against ethnic, religious and national minorities.”

Peru: Peru institutes state of emergency after indigenous groups protest energy law

2008-08-19

The government of Peru on Monday instituted a state of emergency in the northern region of the country, banning public gatherings, limiting travel, and increasing police presence for 30 days. The measure comes in response to large protests held by indigenous groups who oppose a new law reducing the majority by which a tribe must agree to sell communal land to oil and natural gas companies. Government officials said that the actions were necessary to protect the power generation stations which were the focus of the occasionally-violent protests, but an advocacy group for the Amazon natives has defended their right to protest what they say is an encroachment on their decision making process. Earlier this month, the UN held a celebration of the International Day of the World’s Indigenous Peoples, where UN Secretary General Ban Ki-moon expressed the UN’s dedication to ending the “expropriation of [indigenous peoples’] traditional lands.”

The controversial new law is part of a trade agreement negotiated during the administration of US President George W. Bush, who has tried to make it easier for energy companies to acquire land from US trading partners. Bush has made several other recent policy changes in an effort to increase the country’s oil supply. In July, he issued a memorandum lifting an executive ban on offshore oil drilling which had been put in place in 1990 by his father, then-President George H. W. Bush. In June, Bush called on Congress, which is still preventing offshore drilling, to relax restrictions on oil exploration.

United States: Appeals Court hits law firm for 'vague, indecipherable billing statements'

2008-08-19

A California appeals court has cut nearly $230,000 off of a request for $250,000 in attorney fees in an opinion that accuses the lawyers seeking the money of apparently padding their bills. “Substantial evidence supports the trial court’s conclusion,” the court said, “[that] counsel leavened the fee request with non-compensable hours and vague, indecipherable billing statements, destroying the credibility of the submission and therefore justifying a severe reduction.”

European Union: New Airline alliance seeks antitrust permission

2008-08-19

American Airlines, British Airways and Iberia Airlines said Thursday that they had signed a joint business agreement for flights between the United States and Europe. The airlines said they planned to apply for antitrust approval from the United States Department of Transportation and would notify the European Union authorities. The step comes a dozen years after American and British Airways first tried to join their operations in a network stretching around the world.

Sweden: Merger control (Sweden): Swedish Competition Authority opens special investigation into the proposed acquisition of C More Group AB by TV4 AB

2008-08-18

The Swedish Competition Authority (“SCA”) has opened a special investigation into the proposed acquisition of C More Group AB by TV4 AB, both active in the market for television services. The SCA now has 3 months within which to decide whether the proposed acquisition would create or strengthen such a dominant market position that would significantly impede effective competition in the Swedish Market or a substantial part thereof. The SCA’s decision is expected by 7 November 2008.

Source: The Swedish Competition Authority (www.kkv.se) 07/08/2008

Germany: Mergers: Commission approves proposed battery systems joint venture between Robert Bosch and Samsung

2008-08-18

The European Commission has cleared under the EU Merger Regulation the proposed joint venture between the German Robert Bosch GmbH and the South Korean Samsung SDI Co. Ltd. in the market for battery systems for hybrid electric and electric vehicles. After examining the operation, the Commission concluded that the transaction would not significantly impede effective competition in the European Economic Area (EEA) or any substantial part of it.

Bosch is a global supplier of a wide range of technical products, inter alia in the automotive sector. Samsung develops, produces and sells electronic products worldwide. Bosch and Samsung intend to set up a jointly controlled business that would develop, produce and sell battery systems and mid- to large-sized energy storage devices based on the lithium-ion technology for the automotive industry’s increasing demand for battery systems for hybrid electric and electric vehicles. The joint venture would offer its products in its own name and on its own account.

By combining the parties’ know-how in their respective core businesses, they aim at enabling the joint venture to develop rapidly a marketable product that would meet the specific demands of the automotive industry.

With the planned joint venture the parties intend to enter a market in which none of them has been active in the past. The market investigation has revealed that other manufacturers have entered or are in the process of entering the market for battery systems with similar products and solutions. Therefore, the joint venture would not be in a position to engage in anticompetitive behaviour and customers in the automotive industry would have a sufficient array of sourcing alternatives for this component.

The Commission thus concluded that the proposed concentration would not give rise to any competition concerns.

United States: Fifth Circuit orders anti-Castro militant to stand trial for US immigration violations

2008-08-18

The US Appeals Court for the Fifth Circuit ruled Thursday that anti-Castro militant Luis Posada Carriles will stand trial in the US for alleged immigration violations, effectively blocking extradition efforts by Cuba and Venezuela. Both countries say that the US is bound by international treaties, including the International Convention for the Suppression of Terrorist Bombings and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, to hand over Carriles, but the US has so far refused to do so. Carriles, a Venezuelan-born Cuban citizen, is wanted in both Cuba and Venezuela on terrorism charges relating to the 1976 bombing of a Cuban airplane.

Carriles was arrested in 2005 for illegally entering the US and had been under the custody of immigration officials until his release on bail in April 2007. Cuba criticized Carriles’ release, and accused the US of violating international anti-terrorism treaties by freeing him and dismissing charges against him. Also in April 2007, Venezuela announced plans to challenge the US before the Organization of American States (OAS) and other international bodies for refusing to prosecute or extradite Carriles for the terrorist bombing. The US government has cited the UN Convention Against Torture as justification for denying Cuban and Venezuelan requests to extradite Carriles, asserting that Carriles could face torture in those countries.

United Kingdom: UK libel law discourages free speech: UN rights committee

2008-08-18

The United Nations Committee on Human Rights has criticized British libel laws for stifling freedom of speech, according to Thursday media reports. In a report issued after its 93rd session in Geneva, the Committee said restrictive laws may encourage media agencies and scholars to abandon reporting on serious public issues, especially in cases involving the Internet. The report also expressed concern that the laws encourage the phenomenon know as “libel tourism,” where petitioners use the London High Court to sue foreign publishers under laws that are seen as friendly to the claimant. The Committee said:

The State party should re-examine its technical doctrines of libel law, and consider the utility of a so-called “public figure” exception, requiring proof by the plaintiff of actual malice in order to go forward on actions concerning reporting on public officials and prominent public figures, as well as limiting the requirement that defendants reimburse a plaintiff’s lawyers fees and costs regardless of scale, including Conditional Fee Agreements and so-called “success fees,” especially insofar as these may have forced defendant publications to settle without airing valid defences. The ability to resolve cases through enhanced pleading requirements (e.g., requiring a plaintiff to make some preliminary showing of falsity and absence of ordinary journalistic standards) might also be considered.

The Committee also expressed concern that the Official Secrets Act 1989 has been used to prevent former government officials from bringing issues of public interest to light.

Experts first raised concerns after Khalid bin Mahfouz, a Saudi businessman, used UK courts to sue Dr. Rachel Ehrenfield, the director of The American Center for Democracy, for defamation. Ehrenfield had accused Mahfouz of funding terrorism in her book “Funding Evil.” Mahfouz won a judgment in 2005 for more than $225,000 after the court granted jurisdiction based upon 23 copies of the book being sold in the UK along with one chapter of the book that was available over the Internet. In July, a judge for the High Court ordered a British man to pay approximately $44,000 in damages for creating a fake profile on social networking website Facebook and posting defaming information about an acquaintance, Mathew Firsht. Also in 2005, film director Roman Polanski was allowed to pursue a libel suit via video tape against Vanity Fair despite his status as a fugitive at the time.

Finland: Merger control (Finland): Finnish Competition Authority clears proposed acquisition of the confectionery business of Cloetta Fazer by Oy Karl Fazer Ab

2008-08-18

The Finnish Competition Authority (“FCA”) has cleared the proposed acquisition in which Oy Karl Fazer Ab (“Fazer”) makes a public bid for the shares which concern the confectionery business of Cloetta Fazer AB (publ.). Fazer is active in the restaurant services market and bakery industry in the Nordic and Baltic countries and Russia. Cloetta Fazer produces chocolate and sugar confectionery, drops and chewing gum. The confectionery business in question belonged to Fazer prior to the establishment of the joint venture in which Cloetta AB, of Sweden, and the confectionery business of Fazer were joined in 1999/2000. In the transaction Cloetta Fazer will be divided into two separate companies, Cloetta and Fazer Confectionery. The FCA concluded that the proposed acquisition will not create or strengthen such a dominant market position that would significantly impede effective competition in the Finnish market or any substantial part thereof.

Source: The Finnish Competition Authority (www.kilpailuvirasto.fi) 9/7/2008

United States: US stock exchanges agree to centralize insider trading regulation

2008-08-18

The US Securities and Exchange Commission (SEC) announced on Wednesday that it has reached a tentative agreement with ten US stock exchanges to centralize insider trading controls among the institutions. Under the plan, the programs to prevent and detect insider trading will be centrally controlled by the Financial Industry Regulatory Authority (FINRA) and a section of the New York Stock Exchange (NYSE), instead of having each exchange run its own program. Under the Securities Exchange Act of 1934, the markets are required to institute self-regulating controls, and the SEC has said the plan should make those controls more effective.