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When Government Knowledge Of Industry Practice Bars FCA Claims >
January 3, 2018
Law360
By: Carolyn H. Kendall
On Nov. 16, 2017, the Third Circuit ended a long-fought False Claims Act case of alleged Medicare Part D fraud, holding that a pharmacy benefit manager's limited noncompliance with pharmacy claims processing requirements was not material to Medicare's payment decisions within the meaning of the U.S. Supreme Court's Escobar decision. The Third Circuit's affirmation of the district court's summary judgment dismissal relied heavily on evidence that the government was aware that the alleged noncompliance was an industry practice, even though the government may not have been aware of the specific PBM's alleged noncompliance.

Changes in Partnership Audit Procedures Call for Changes in Partnership Agreements >
December 18, 2017
The Legal Intelligencer
By: F. Traynor Beck and James R. Malone, Jr.
As 2017 draws to a close, changes that will go into effect for tax years that begin after Dec. 31 mean that every business that is treated as a partnership for federal income tax purposes needs to revise their partnership or operating agreement. The changes, which include the treatment of small partnerships, control over the audit process, and shifting of the tax bill from partners to the partnership, will render existing agreements obsolete and leave partners' interests unprotected.

PSQIA Prompts Federal Courts to Reconsider a Federal Common Law Peer Review Privilege >
December 1, 2017
AHLA's MedStaff News
By: Robin Locke Nagele and Elizabeth M. Hein
Health care entities and other organizations conducting medical peer review have, for years, faced uncertainty regarding whether documents created in the course of medical peer review will be discoverable in litigation. While all 50 states have enacted medical peer review statutes, which grant varying degrees of protection to documents used by peer review committees, courts often have narrowly interpreted the privileges created by such statutes.

Mr. Mueller's Options, Short Of Indictment >
November 27, 2017
Law360
By: Ronald H. Levine
Suppose special counsel Robert Mueller's investigation unearths evidence that falls short of the legal standard to indict (probable cause), or falls short of the DOJ policy standard required to seek an indictment (admissible evidence probably sufficient to obtain and sustain a conviction). Suppose further that - as a matter of national security or noncriminal malfeasance - this evidence would likely be of great interest to the public and/or relevant to congressional committees investigating parallel and related matters. Do potential disclosure options exist notwithstanding the general rule of grand jury secrecy? Yes.

Right to Work Initiatives: Rallying Cry for Unions or Contributor to Decline? >
November 16, 2017
The Legal Intelligencer's 2017 Labor and Employment Supplement
By: Sarah C. Yerger
Organized labor unions in both the public and private sectors have experienced declining relevance and power since the 1980s a decline made more precipitous by right-to-work (RTW) legislation and laws throughout various states 28 at last count. Though labor unions are woven into the cultural, political, and economic fabric of America, the changing climate for American labor has challenged unions' influence over the workplace and has presented potential risks to their continued survival.

Decision Highlights Need for Employer Vigilance to Sexual harassment in the Workplace >
November 8, 2017
The Legal Intelligencer
By: Sidney R. Steinberg
With sexual harassment so much in the news, a recent decision of the U.S. District Court for the Eastern District of Pennsylvania reminds us of an employer's obligation when it becomes aware of harassing behavior from a co-worker.

Timing of Termination Leads to Viable FMLA and ADA Claims >
October 12, 2017
The Legal Intelligencer
By: Sidney R. Steinberg
Neither the Family and Medical Leave Act (FMLA) nor the Americans with Disabilities Act (ADA) are so-called “job protection” statutes. employers can and should discipline employees, up to and including termination, despite an employee having a disability or needing FMLA leave. The timing of such decisions when an employee has implicated either statute, however, should be considered very carefully.

Court Defines 'Willfulness' Under FLSA and OKs Reduced Fee Award >
October 2, 2017
The Legal Intelligencer
By: Andrea M. Kirshenbaum
On Sept. 20, 2017, the U.S.Court of Appeals for the Third Circuit issued a precedential opinion in Souryavong v. Lackawanna County that is music to the ears of employers on two fronts.

No Sexual Harassment, but Retaliation Claim Survives >
September 13, 2017
The Legal Intelligencer
By: Sidney R. Steinberg
Just as the adage is that "the coverup is worse than the crime," we know that in employment law, "the retaliation claim is more dangerous than the underlying discrimination." The latest example of this is in the recent decision of Austin v. Bloomin' Brands.

Third Circuit's Take on 'Same Hire, Same Fire' Defense >
August 9, 2017
The Legal Intelligencer
By: Sidney R. Steinberg
When the same individual hires an employee and shortly thereafter fires him, it makes intuitive sense that discrimination almost certainly did not motivate the termination. After all, why would an employer hire an employee in a protected category and then use the protected category as a factor in the subsequent termination? The U.S. Court of Appeals for the Third Circuit, however, has consistently rejected what is often referred to as the "same hire, same fire" defense, as precluding a finding of discriminatory animus, finding it to be simply "evidence like any other."

The Obstacles to Private Resolution of FLSA Claims >
July 31, 2017
The Legal Intelligencer
By: Andrea M. Kirshenbaum
A question that has bedeviled employers for decades: Can employers obtain a release of claims under the Fair Labor Standards Act (FLSA) in the absence of DOL or court approval? A recent decision adds more fuel to the fire, dismissing a plaintiff's FLSA claims and holding that the plaintiff's "pre-litigation settlement agreement" released her FLSA claims, even without the imprimatur of the DOL or a court.

Pa. High Court Addresses Scope of the Environmental Rights Amendment >
July 25, 2017
By: Terry R. Bossert
There is no doubt that the PEDF decision will lead to more challenges to government actions and challenges to legislation or regulations relating to the environment as different stakeholders find different meanings in the decision. There is also no doubt that the three-part Payne test will not be applicable to those challenges. It is clear that when those challenges implicate the use of or the impact to publicly owned natural resources the standard of review will involve the private trust principles discussed in the opinion. What is less clear is what standard of review will apply to government actions or government authorizations for private actions that impact the environment generally.

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