By Don Benson, Esq. A new Eleventh Circuit case is being criticized for changing the standard for summary judgment in a discrimination case. Jefferson v. Sewon America, Inc., No. 17-11802 (June 1, 2018) This is incorrect. Although it does not raise the bar for employers on summary judgment and does not change prior case law; it does emphasize an important point for Employers when addressing both Plaintiff/Employee’s direct evidence and circumstantial theories for proving discrimination in the Employer’s motion for summary judgment. Despite the Jefferson ruling, it remains true that: Plaintiff/Employee can argue in the alternative that (a) there is direct evidence of discrimination and/or (b) there is also sufficient evidence under the four step analysis of McDonnell Douglas. Employer comments/actions can be argued to be direct evidence and The same comments/actions can be argued to be the prima facia showing or evidence of pretext under the four step analysis…       Read More

Written by: Sandro Stojanovic, Esq. Traditionally, motor carriers, as all domestic corporations, have been able to remove the venue to the county in which the corporation maintains its registered office. O.C.G.A. § 14-2-510(b)(1). The Court of Appeals has now made that right frail. In Blakemore v. Dirt Movers, Inc., 344 Ga. App. 238 (2018), the Court of Appeals held that when Plaintiff alleges facts to support venue under O.C.G.A. § 40-1-117(b), the venue against the motor carrier may lie “in the county where the cause of action or some part thereof arose…” The Court then held that if there is a separate basis for venue (such as O.C.G.A. § 40-1-117(b)), the plain language of O.C.G.A. § 14-2-510(b)(4) precludes the motor carrier from removing the case to the county where its principal place of business is located. A careful reading of Plaintiff’s Complaint may provide grounds for removal, especially where Plaintiff…       Read More

Written by: Karl Braun, Esq. One of the toughest aspects of coverage and coverage opinions is making determinations with an acceptable level of certainty. This task is made exceedingly difficult when courts make coverage determinations based upon amorphous concepts like whether a company has a “substantial business presence” in a certain jurisdiction. The Court of Appeals of New York delivered just such a potential morass in Carlson v. American Intern. Group, Inc., 30 N.Y.3d 288, 89 N.E.3d 490, 67 N.Y.S.3d 100, 2017 N.Y. Slip Op. 08163 (Nov. 20, 2017). MVP and its employee driver, William Porter, were defendants in an underlying suit involving an MVP owned delivery truck (painted with DHL’s logo) that, while being driven by Mr. Porter, crossed the centerline and hit the plaintiff, Claudia Carlson, killing her. A jury awarded her husband $20 million, ultimately reduced to $7.3 million, and the issues on appeal involved three insurance…       Read More

Compiled by: Richard Sheinis, Esq. California May Lead the Way on GDPR-Like Regulations in the US Business Insurance The influence of the European Union’s General Data Protection Regulation, which took effect May 25, is likely to be felt in the United States as well, … Data Breach Sparks DNA Test Privacy Concerns BioNews Genealogy service MyHeritage has revealed that some of their user account data has been hacked. Concerns over the safety of DNA testing services … PageUp Says it is ‘Probable’ Customer Data Was Externally Accessed ZDNet As big data, the IoT, and social media spread their wings, they bring new … PageUp said it is continuing to work with the Australian Cyber Security … Colorado’s Tougher Breach Law: Healthcare Incidents Included GovInfoSecurity.com Colorado’s Protections For Consumer Data Privacy, recently signed into law by Gov. John Hickenlooper, contains some provisions for data security … Vietnam Passes Cybersecurity Law Despite Privacy…       Read More

Written by: Bradley R. Coppedge, Esq. Choice of entity is an important decision not only for a start-up business, but also for an existing business, especially in the family estate planning context. Under current laws in many states, it has become easier and easier to convert from one form of entity to another, oftentimes without tax consequences. In addition, under the federal tax code, generally any entity may elect to be taxed as a different type of entity. The options are wide ranging: C-Corporation, S Corporation, limited liability company (“LLC”), general partnership, limited partnership, limited liability partnership, and limited liability limited partnership. Each of these entities has certain strengths relative to the others, whether its liability protection, supporting case law, or general operational considerations. Moreover, entity choice has tax consequences, some subtle, others not so subtle. Where business matters are of more primary concern than estate planning matters, the choice…       Read More

Written by: Don Benson, Esq. Every summer, many employers take on “interns” and ask whether the intern must be paid. If interns, trainees and students are “employees” of a “for-profit” employer under the Fair Labor Standards Act, then they must be paid minimum wage and overtime. Courts have used the “primary beneficiary test” to determine whether an intern or student is, in fact, an employee under the FLSA. In short, this test allows courts to examine the “economic reality” of the intern/employer relationship to determine which party is the “primary beneficiary” of the relationship. Courts have identified the following seven factors as part of the test: 1. Whether the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee. 2. Whether the internship provides training that would be similar to training in an…       Read More

Compiled by: Richard Sheinis, Esq. Facebook Gave Device Makers Deep Access to Data on Users and Friends New York Times “This was flagged internally as a privacy issue,” said Mr. Parakilas, who left Facebook … idea,” said Henning Schulzrinne, a computer science professor at Columbia University who specializes in network security and mobile systems. Atlanta Police: Cyberattack Erased dash Cam Archive Police News Associated Press. ATLANTA — The Atlanta Police Department’s archive of dashboard camera video was wiped out in a March cyberattack, the police … Apple Declares War on ‘Browser Fingerprinting,’ the Sneaky Tactic That Tracks You in Incognito Mode Gizmodo Apple is rolling out some new and much-welcomed privacy protections for Safari that it says will prevent third parties from tracking you, particularly … Tyre Giant Continental Bans Staff from Using Snapchat and WhatsApp Over Data Protection Fears Telegraph.co.uk The German company said the apps “have deficiencies when it…       Read More

Written by: Jodi Barrett, Esq. & Kate Watson, Esq. OVERVIEW1)Information reproduced from www.flhealthsource.gov/floridatakecontrol/ To combat the national opioid epidemic, in March 2018, the Florida Legislature passed laws creating new limits on prescriptions for pain medication. These restrictions do not apply to patients suffering pain from: Cancer; Terminal illness; Provision of relief for symptoms related to an incurable, progressive illness or injury (chronic nonmalignant pain); Palliative care; or Serious traumatic injuries. The law (Section 456.44(3)(d), F.S.) specifies requirements for prescribing practitioners seeing patients being treated with controlled substances for chronic nonmalignant pain. In proposing the 2018 legislation, lawmakers focused attention on preventing addiction through placing opioid prescription limits for patients with acute pain. Effective July 1, 2018, the Controlled Substance Bill establishes prescribing limits, requires continuing education by prescribers on controlled substance, and expands required use of Florida’s Drug Monitoring Program (E-FORCSE®). The law also places a three-day limit on opioid…       Read More

Written by: Joel McKie, Esq. For owners of broiler grow-out houses, the decision to make upgrades to their facilities at the demand of a poultry integrator can be very difficult.  On one hand, the value of a grower’s farm and in many cases, the grower’s livelihood is inextricably connected to the continued operations of the broiler grow-out houses.  However, further investment (and in some cases debt) into broiler grow-out houses without a certain way to recoup the grower’s investment may seem just as unreasonable. Ten years ago, Congress modified the Packer and Stockyards Act (the “Act”) to give poultry growers additional (albeit modest) rights in their relationship with poultry integrators.  In the 2008 Farm Bill, Congress instructed, among other things, USDA to write regulations related to when a requirement of additional capital investments over the life of a poultry growing arrangement contract constitutes a violation of the Act.  While the…       Read More

By Daniel R. Crumby, Esq., MBA, MHA, CHC1)Daniel Crumby was a federal prosecutor in the Southern District of Georgia and the Western District of Texas and he represented the United States as a federal civil litigator. He focuses his practice on federal investigations, health care fraud and abuse, medical malpractice and long-term care. The Department of Justice explicitly designated 12 federal prosecutors across the country as part of the Opioid Fraud and Abuse Detection Units. These Units are assigned to areas where the most opioid drug-related deaths have occurred: California, Nevada, Alabama, Central Florida, East Tennessee, West Virginia, North Carolina, Kentucky, Ohio, Pennsylvania, Michigan, and Maryland. Members of these Units also includes numerous federal, state, and local law enforcement and governing entities including the DEA, FBI, HHS, and other federal and state agencies (Medicaid Fraud Control Units, FDA, IRS, State Pharmacy Boards, etc.). These Units have a specific mandate to…       Read More