The <i>Horn</i> Decision: Significant Victory for Employers
September 19, 2003
New York's Court of Appeals recently issued an important decision in which it declined to expand the narrow exception to the 'at-will' employment doctrine enunciated in <i>Wieder v. Skala</i> for attorneys to physicians employed by non-medical employers. The court's decision in <i>Horn</i>, however, arguably is limited to that particular class of physicians whose duties are not limited to providing medical treatment, but include non-medical-related management responsibilities as well. Consequently, the court will likely be faced with future attempts by professionals, including physicians employed by medical employers, to expand the Wieder doctrine to them.
Understanding the ADA's 'Reassignment' Obligation
September 19, 2003
One of the most controversial questions since the passage of the Americans with Disabilities Act of 1990 (ADA) has been whether an employer must reassign an employee who can no longer perform his or her job because of a disability. After years of conflicting decisions and arguments, the answer is now easy ' yes.
Who Will Run Your Franchised Hotel?
September 17, 2003
Management agreements provide the vehicle through which investors in hotels, restaurants, and other commercial properties engage professional managers to operate their properties. The practice began in the lodging industry after the end of World War II when hotel construction boomed in response to demand from middle-class American families for clean, moderately priced travel accommodations ' the same demand that spawned the Holiday Inn chain and other lodging industry franchises. Investors with no experience in hotel management fueled the boom in hotel construction with their capital, but professional managers generated the returns on investment the investors craved.
CASES IN COURT
September 16, 2003
The U.S. Supreme Court recently issued a landmark decision in a much anticipated case, Cook County v. United States ex rel. Chandler, 2003 WL 890268, S.Ct. (March 10, 2003). The Court's unanimous opinion authored by Justice Souter resolved a split among the circuit courts by holding that municipal corporations are 'persons' amenable to qui tam actions under the False Claims Act, and subject to the imposition of civil penalties, treble damages, and costs.
REGULATORY DEVELOPMENTS
September 16, 2003
On March 13, 2003, Tommy G. Thompson, Secretary of the U.S. Department of Health and Human Services (HHS), announced two proposed rules from the Food and Drug Administration (FDA) that are intended to improve patient safety and are part of a strategic initiative by the FDA to reduce adverse events involving products that it regulates.
In the Spotlight
September 16, 2003
A settlement in principle has been reached between the FTC and giant drug manufacturer Bristol-Myers Squibb Company (whose total domestic net sales last year exceeded $13 billion). On March 7, 2003, the FTC announced the settlement. It resolves allegations filed by the FTC (In the Matter of Bristol-Myers Squibb Company) that the company violated federal antitrust laws and abused FDA's regulatory process in preventing generic drug manufacturers from competing against three of its widely prescribed products ' Taxol ' (paclitaxel) and Platinol (anti-cancer drugs), and BuSpar' (an anti-anxiety drug). The result of Bristol-Myers' conduct, according to the government, was that consumers were forced to pay hundreds of millions more than they needed to had generic products been available.
Doing Business After Sarbanes-Oxley
September 16, 2003
In a recent article in this newsletter, we described a hypothetical situation about a publicly traded health care entity that was under attack by government regulators, disgruntled shareholders, and likely a qui tam relator. See, Michael E. Clark, Proffer Agreements May Be a Viable Strategy for Negotiating with Government, (Health Care Fraud & Abuse Newsletter, October 2002). This hypothetical situation continues in this article, as we illustrate some of the heightened compliance risks facing officers, directors, and attorneys who represent publicly traded entities as a result of The Sarbanes-Oxley Act of 2002 ('Sarbanes-Oxley'), Pub. L. 107-204, 116 Stat. 745 (2002), which ushered in major reform measures when signed into law on July 30, 2002 (and also in light of other proposals for strengthening corporate accountability from the major self regulatory organizations and exchanges: the National Association of Securities Dealers (NASD) (see NASDAQ Corporate Governance Proposals, September 13, 2002) and The New York Stock Exchange (NYSE) (see Corporate Governance Rules Proposals Reflecting Recommendations from the NYSE Corporate Accountability and Listings Standards Committee As Approved by the NYSE Board of Directors, August 1, 2002).
BRIEFS
September 16, 2003
Highlights of the latest franchising news from around the country.
COURT WATCH
September 16, 2003
Highlights of the latest franchising cases from around the country.
Franchising: Once You Start, Can You Stop?
September 16, 2003
If a company ceases to expand its brand and market penetration through the sale of franchises as part of a plan to convert to an employee-based operation, is it exposed to liability for breach of the implied covenant of good faith and fair dealing? The answer is yes, according to one California appellate court. In <i>Sherman v. Master Protection Corp.</i>, 2002 WL 31854905 (Cal. App. 6 Dist. Dec. 18, 2002)(rev. den. April 9, 2003) [Business Franchise Guide (CCH) '12,503], a non-published decision, a unanimous three-judge panel of the California Court of Appeal for the Sixth District recently awarded damages and legal fees to a franchisee on that very basis.
