FDA's Failure-to-Warn Pre-emption
May 31, 2007
Nearly one year after the U.S. Food and Drug Administration issued a pre-emption on filing failure-to-warn actions over federally approved drugs, rulings across the nation show a clear division over the issue.
Medicaid Liens on Settlements After Ahlborn
May 31, 2007
Last May's U.S. Supreme Court decision in Ark. Dep't of Human Servs. v. Ahlborn, 547 U.S. 268 (2006) ' which held that when a Medicaid benefits recipient settles with a tortfeasor, states seeking recoupment of funds for monies expended on their medical care may do so only from that part of a settlement that was designated as being for past medical expenses ' has so far led to very few reported decisions on the subject. However, two recent cases in New York have applied the teachings of the decision to find that some malpractice claimants who are also Medicaid benefits recipients and who settle with those who allegedly injured them must be allowed to keep for themselves more of the proceeds of their claims.
Fields v. Yusuf
May 31, 2007
Generally speaking, a physician is not liable for the negligent actions of hospital employees and staff who are not employed by the physician. There are, however, two key instances where a physician can be held liable for a non-employee's negligent actions: 1) when the physician discovers a non-employee's negligence during the course of ordinary care and fails to correct or otherwise prevent the ill effects of the negligent act; and 2) when the non-employee is under the physician's supervision and control such that a 'master and servant' relationship exists. Over the past several decades, the viability of this 'captain of the ship' doctrine has diminished, for several reasons.
Partial Birth Abortion
May 31, 2007
In what may become a landmark decision on abortion rights, the U.S. Supreme Court recently upheld the federal Partial-Birth Abortion Ban Act of 2003 (the Act) in a 5-to-4 decision with implications extending beyond the abortion field.
News Briefs
May 31, 2007
Highlights of the latest franchising news from around the country.
Movers & Shakers
May 31, 2007
News about lawyers and law firms in the franchising industry.
Court Watch
May 31, 2007
Highlights of the latest franchising cases from around the country.
Factors That Contribute to a Community of Interest
May 31, 2007
Several states require a 'community of interest' between the parties to establish the requisite relationship to trigger the notice and disclosure requirements under the state's dealership or franchise laws. But ask franchise lawyers what is meant by this phrase, and what becomes clear is how unclear determining a community of interest can be. The U.S. District Court for the Eastern District of Wisconsin shed some light on the issue in its recent decision in <i>Miller-Bradford & Risberg, Inc. v. VT LeeBoy, Inc.</i>, Business Franchise Guide '13,522 (filed Jan. 26, 2007).
Exemptions and Prohibitions in the New Franchise Rule
May 31, 2007
The New Franchise Rule deletes the four exclusions in the existing Rule for employer-employees and general partnerships, cooperative organizations, testing or certification services, and single trademark licenses, since a revised definition of 'franchise' in the Rule obviates the need for these exclusions. The New Rule retains the exemption for franchise sales under $500, fractional franchises, and leased departments, while adding an exemption for petroleum marketers governed by the Petroleum Marketing Practices Act, as well as for three categories of 'sophisticated investor.'
Conference Review: Implementation of FTC Franchise Rule Draws Significant Attention at IFA Legal Symposium
May 31, 2007
With optional use of the updated Franchise Rule coming on July 1, 2007, and mandatory use beginning on July 1, 2008, the broad outlines of the Rule are well understood in the franchise industry even at this early point. Yet, as franchise attorneys work with individual clients, they are finding unique circumstances under which the Rule's guidance is confusing or even contradictory, particularly during the one-year transition period. Thus, two panel discussions at the International Franchise Association ('IFA') Legal Symposium on May 6-8 in Washington, DC, were the ideal opportunities for attorneys to raise what-if questions with regulators and their fellow franchise attorneys.
