USLAW DigiKnow
Welcome to USLAW DigiKnow      

In this edition of USLAW DigiKnow, our digital knowledge newsletter featuring highlights from around the NETWORK, you will find member articles and posts on topics ranging from ERISA, EPA, FDA to Medicare Tax, intellectual property, tribal casinos, transportation and much more. In addition there are a state updates from California, Ohio, Texas and West Virginia. Through USLAW DigiKnow, we share legal, legislative and jurisdictional news as well promote upcoming USLAW events, webinars and podcasts that might be of interest to you and your colleagues.

Speaking of events, you are invited to one of our kick-off events of 2014. We are just weeks away from our first significant educational and networking events of 2014 -- the inaugural USLAW Corporate Counsel Exchange and the USLAW Product Liability Exchange on Feb 12 preceded by a customized reception and tour of AT&T Stadium/Dallas Cowboys Stadium on the evening of Feb. 11. Event participants will include attorneys, general counsel, risk managers, claims adjusters, litigation specialists, consumer affairs and labor relations executives and more. Please join us.

As a recipient of this e-mail, you are invited to Dallas for this impactful event. Registration is free and please note that expense reimbursement scholarships are available, too.  For more information about each program, click the following links: USLAW Corporate Counsel Exchange and USLAW Product Liability Exchange Sign up today!


Check out the USLAW calendar on the right for details of other upcoming key dates as well. We hope you will find this edition of USLAW DigiKnow useful. Thank you for your continued support of USLAW NETWORK and we look forward to seeing you at one or more of the USLAW events throughout the year. 

Roger Yaffe



New California Employee Laws Strengthen Protection For Whistleblowers and for Immigrants     

California employers and their attorneys should be aware of a series of recently enacted state laws that target employers who retaliate against workers, according to Brian Inamine, a veteran LeClairRyan labor and employment attorney. The laws offer increased protection to both whistleblowers and to immigrant employees, while potentially subjecting violators to criminal penalties.




Sixth Circuit Holds That Voluntary Job Transfer Can Be an Adverse Employment Action      

On January 14, 2014, the Sixth Circuit Court of Appeals (Ohio, Michigan, Kentucky, Tennessee) ruled that transferring an employee to another position constituted an adverse employment action, despite the fact that the employee requested the transfer. In doing so, the Sixth Circuit reversed the District Court's decision that granted summary judgment to the defendant on the plaintiff's race, national origin, and age discrimination claims.




Texas Court Holds Suit Under D&O Policy Not Ripe for Declaratory Judgment    

In its recent decision in American Construction Benefits Group, LLC v. Zurich Am. Ins. Co., 2014 U.S. Dist. LEXIS 5147 (N.D. Tex. Jan. 15, 2014), the United States District Court for the Northern District of Texas had occasion to consider whether a D&O insurer's coverage obligations were triggered by a threatened, but not yet filed, derivative action lawsuit. 
Zurich insured ACBG under a directors and officers policy. ACBG procured reinsurance for its member company, J.D. Abrams, L.P., through a third company. While negotiating a renewal of the reinsurance, ACBG's president agreed to an exclusion for a specific medical procedure that had been performed on a child of an Abrams employee. The reinsurer subsequently denied coverage for the $1.2 million in costs associated with the procedure. ACBG later sought coverage for this amount from Zurich, claiming that its president committed a wrongful act when it agreed to the exclusion in the reinsurance contract. While Zurich acknowledged ACBG's claim, it never formally asserted a coverage position.




West Virginia Supreme Court Ruling Appears to Rescind Daubert Standard  

Late last year, the West Virginia Supreme Court of Appeals, appeared to rescind, or at least disregard, its line of cases that followed the federal Daubert standard for assessing the admissibility of scientific evidence....Although the Supreme Court states in the body of the 4 to 1 majority opinion that "...the question before us is whether the trial court abused its discretion in concluding that the reliability prong of Rule 702 was not met," the court stated in its official syllabus point to the opinion that "...we will review the circuit court's method of conducting the analysis de novo," which is what it did.




Changes to the Estate Tax Administration Act  

The latest changes to The Estate Administration Tax Act, which came into force on January 1, 2013, have increased the level of diligence a trustee should have in handling estate matters. However the regulations are yet to take effect.

Due to the changes, people may want to consider the different options that are available in estate planning to avoid having their estates go through probate and hence having to comply with the changes to the Act. Anyone involved in any capacity in the administration of estates should be aware of these new changes and their implications as discussed below: 

National (Employment and Labor Law)
An ERISA Plan's Contractual Limitations Period Is Enforceable, Says The U.S. Supreme Court

The U.S. Supreme Court continues to rule in favor of the ERISA plan document.A disability plan's three-year limitations period doesn't violate the Employee Retirement Income Security Act (ERISA), a unanimous Court ruled on December 16, 2013 in Heimeshoff v. Hartford Life & Accident Ins. Co. "[A] participant and a plan may agree by contract to a particular limitations period, even one that starts to run before the cause of action accrues," held the Court. ERISA itself does not specify a statute of limitations for claims brought under covered plans.


Read More  from SmithAmundsen

National (Environmental)
EPA Takes Important Step in Implementing the Hazardous Waste Electronic Manifest Establishment Act

WASHINGTON - The U.S. Environmental Protection Agency (EPA) today issued a final rule that is a crucial step in the development of a national electronic manifest (e-Manifest) system, which will upgrade the current paper-based system of tracking hazardous waste to an electronic one. 


Read More  from Environmental Protection Agency

National (Intellectual Property and Technology)
Federal Circuit Affirms Rejection by Examiner Based on Incomplete Prior Art

The Federal Circuit issued an interesting decision in In re Enhanced Security Research, LLC (No. 2013-1114) this week. The Patent Trial and Appeal Board (PTAB) affirmed an examiner's rejection of certain claims of a patent as obvious during an ex parte reexamination based on a user manual that was missing pages and of dubious origins. The Federal Circuit, in a 2-1 decision, affirmed. What makes this case interesting is the discussion of the completeness and authenticity of the prior art considered by the Patent Office.


Read More  from Picadio Sneath Miller & Norton, P.C.

National (MedicareTax)
March 6th Deadline! Distribute Your Trust/Estate Income or Pay Medicare Tax

I am one of four beneficiaries of a (modest) trust my father established for his children.  Up until recently, our trust owned family farmland that had been rented at a rate sufficient to pay taxes and insurance on the property.  The farmer tenant approached the trustees about purchasing the property, and we agreed to sell it, closing in January 2013.  As a tax attorney, I began to think about the tax implications of the deal for myself and my siblings, and it occurred to me that, hey, we might have that nasty Medicare tax to deal with...  


Read More  from Poyner Spruill LLP 

National (Native American Law)
Jurisdiction for Injuries Arising at Tribal Casinos:
The Importance of Clear Dispute Resolution Terms
The State supreme courts in Oklahoma and New Mexico
both have recently determined that their state courts lack
jurisdiction over tort claims arising from conduct at tribal
casinos. These cases are a reminder of the importance
of clear dispute resolution and forum selection clauses in
agreements with tribal nations.
Case Background:Congress passed the Indian Gaming Regulatory Act, 25 U.S.C. 2701 - 2721 ("IGRA") in 1988. Apparently as a compromise, IGRA provided that tribal-state compacts may include provisions relating to "the allocation of the criminal and civil laws and regulations...that are directly related to, and necessary for, the licensing and regulation of such [gaming] activity." 25 U.S.C. 2710(d)(3)(C). For about nine years, parties in Oklahoma and New Mexico have contested whether that statutory language encompasses compact authority to delegate civil jurisdiction over tort claims arising at tribal casinos.

Read More  from Modrall Sperling

National (Product Liability)
FDA's Refusal to Define "Natural" Opens the Door for More Litigation 

On Monday, the FDA issued a  letter in response to three judges' request, including Judge Kevin McNulty of the District of New Jersey, to clarify the term "natural" as it applies to food labeling requirements.  In its letter, the FDA opted not to create a formal definition for the terms "Natural," "All Natural" or "100% Natural," instead relying upon its 1993 policy, in short, that it means "nothing artificial or synthetic... has been included in, or has been added to, a food that would not normally be expected to be in the food."


Read More  from Goldberg Segalla LLP 

National (Transportation)
Federal Court Declares the Ohio Supreme Court "Misinterpreted" the Law in Creating "Logo Liability" in Ohio

Roetzel's Transportation Group attorneys obtained a favorable decision from the United States District Court for the Southern District of Ohio on January 7, 2014, in UPS Ground Freight, Inc. v. James Farran, et al., Case No. 3:12-cv-00130-MRM, which held that the "logo liability" law adopted by the Ohio Supreme Court was based on a misinterpretation of a federal motor carrier regulation. Logo liability," also known as the doctrine of statutory employment, arises when a commercial vehicle is involved in an accident while under lease to the motor carrier and the motor carrier's Interstate Commerce Commission (ICC) identification numbers are displayed on the vehicle. Under such circumstances, there is an irrebuttable presumption that the motor carrier is liable. In other words, the doctrine treats the motor carrier-lessor as the employer of the lessee's driver, even when there is an independent contract in place.


Read More  from Roetzel & Andress        

USLAW Employment & Labor Law Webinar 

Medical Marijuana at Work - The Grass isn't Always Greener   



Jan. 28, 2014
A USLAW Internet, Media & Privacy Webinar 
Recent State/ Federal Court Cases Involving Privacy & Defamation Claims on the Internet

Feb. 12, 2014
DALLAS, Texas 
Driving the Dialogue Series
kicks off in Dallas with the USLAW Corporate Counsel Exchange and the USLAW Product Liability Exchange 

Additional 2014

Driving the Dialogue events will take place in New York and Las Vegas

Feb. 20, 2014
Best Practices for Effective Real Estate Workout Negotiations by Lenders

Feb. 25, 2014
Year in Review - 2013 U.S. Supreme Court Employment Decisions

April 9, 2014
USLAW Client Dinner at Lon's at the Hermosa in conjunction with DRI Product Liability Conference

May 15, 2014 
USLAW Client Dinner at Paris Club Chicago
in conjunction with DRI Retail and Hospitality Litigation and Claims Management Seminar

The Real Deal About Structured Settlements     

MSP Compliance Today and the Impact on Litigation and Claim Handling 


Retail CCTV Systems: Avoid Shooting Yourself in the Foot


False Claims Update 

Red Alert: Premises security litigation is on the rise


Employment policies and agreements to minimize risk in a BYOD Program



Let USLAW help you be the first to know when your company is facing litigation. With USLAW's Lawsuit Monitoring program, we can search for your company on a daily basis and alert you of any activity we find. If you are interested in this service, please contact Roger Yaffe at (800) 231-9110.

Corporations and insurers alike need consistent, quality legal services over a broad spectrum of legal and geographical areas. The cost, time, and expertise required in securing legal representation and negotiating fee schedules throughout the region, country and around the world can be overwhelming, requiring constant effort, oversight, frustration and missed opportunity. Team USLAW is the solution to meet these challenges. For more information on how your company can benefit, please contact Roger Yaffe, USLAW CEO, at (800) 231-9110.

USLAW's password-protected area for Clients - USLAW Connect - boasts libraries of papers and articles prepared by USLAW members, USLAW Magazine and webinar archives, discussions amongst colleagues, past Conference presentations and much, much more. Secure your log-in from USLAW today!

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USLAW NETWORK Inc.'s DigiKnow is a bi-weekly digital update on national and state case and legislative news and developments as well as important USLAW event and educational opportunities provided as a service to USLAW member firms and  their clients. USLAW NETWORK is an international organization composed of more than 100 independent, defense-based law firms with nearly 6,000 attorneys covering the 
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