DOL's New FLSA Regulations and Recent Opinion Letters
October 31, 2005
The Department of Labor's new Fair Labor Standards Act (FLSA) (Wage and Hour Regulations) regulations, which went into effect Aug. 23, 2004, are an attempt to modernize pay scales, increase employee coverage, and clarify rules for employers. Nevertheless, if one were to judge merely by the sheer number of opinion letters the U.S. Department of Labor has issued since the regulations went into effect, it would seem that the new regulations have generated as much confusion as the previous ones. The DOL has issued 31 opinion letters since the effective date of the new regulations, nearly as many opinion letters as for the entire years 2001, 2002, and 2003. This article will summarize the major changes brought about by the FLSA regulations and examine this recent spate of DOL opinion letters.
Make It Go Away!
October 28, 2005
Your client company is a target of a criminal investigation. You've read in the news about "Deferred Prosecution Agreements" and you even pulled out your old Business Crimes Bulletin for an early article on the topic ("Make It Go Away," March 2003). Can you get one for your client? What will it look like? What terms can you negotiate?
Wireless and Joint Commercial E-mail Messages Under CAN-SPAM
October 27, 2005
E-mail and wireless marketers have been coping with some confusion for the last 2 years over the application of the federal CAN-SPAM Act to certain kinds of promotional e-mail campaigns. The agencies responsible for promulgating regulations under the Act recently have provided some important, practical guidance on the use of e-mail messages sent to wireless devices such as cell phones and the conduct of joint e-mail campaigns. Now, with guidance from the regulators, corporate counsel can not only know the legal requirements, they can also guide their companies in using the regulations to their own best advantage.
Perez v. Wyeth and Direct-to-Consumer Ads
October 14, 2005
Six years ago, in <i>Perez v. Wyeth Laboratories Inc.</i>, 161 N.J. 1 (1999), the New Jersey Supreme Court enunciated a novel exception to the learned intermediary doctrine intended to address the rise of direct-to-consumer (DTC) marketing of prescription pharmaceuticals. The learned intermediary doctrine is a common law principle, codified in many states, that shields prescription pharmaceutical manufacturers from liability for failing to warn consumers of the potential side-effects associated with their products as long as they have adequately warned prescribing physicians. The <i>Perez</i> court, however, held that when pharmaceutical companies employ DTC advertising, there is an additional duty to warn consumers of potential risks.
Silica Litigation Case Law and Tort Reforms: A State-By-State Overview
October 07, 2005
After seeing the effects of asbestos litigation on the courts and the economy — such as bankruptcy filings and the economic fallout that ensues — few want to see a repeat with silica litigation. On the federal level, a comprehensive bill has been introduced to address the current and future handling of asbestos, silica and mixed dust claims. The original proposal sought to create a $140 billion national trust fund for asbestos claims. A subsequent draft, which came out of committee May 26, added silica and mixed dust claims to the agenda.
The Sophisticated User Defense in Minnesota: Weighing Knowledge
October 07, 2005
Claims involving a failure to warn are often centered around what a reasonable manufacturer or supplier should have foreseen was necessary to avoid creating an unreasonable risk of harm. If a supplier is deemed to have a duty to warn, the duty can be fulfilled by calling the hazards of the product directly to the attention of the eventual user; for example, through product labeling. <i>Greene v. A.P. Products, Ltd.</i>, 691 N.W.2d 38 (Mich.App., 2004). However, when, as is often the case, a product passes through the hands of multiple intermediaries between the supplier and the eventual user, the situation becomes murkier, and it becomes unclear who should shoulder the burden of the duty to warn. This is where the sophisticated user defense comes in.
Judge's Order Shows Contempt for Doctors' and Lawyers' Tactics
October 07, 2005
As anticipated, Judge Janis Graham Jack's written Order 29 in the <i>In re Silica Products Liability Litigation</i> multidistrict litigation ("MDL") was far from complimentary to the plaintiff bar. The order, dated June 30, addresses subject matter jurisdiction, admissibility of evidence and sanctions for some lawyers Judge Jack basically deemed charlatans. The order followed the defendants' presentation of evidence during a 3-day hearing in February in the U.S. District Court for the Southern District of Texas, Corpus Christi Division, which showed that many of the claims under investigation were brought on the basis of faulty or nearly nonexistent medical diagnoses.
For Defendants: Developing the Sophisticated User/Intermediary Defense
October 07, 2005
In defending silicosis claim lawsuits, defendants must try to demonstrate the knowledge and sophistication of the plaintiff. This can be challenging, however, when the plaintiff disclaims knowledge or claims reliance on specific information from his or her employer or suppliers. The "sophisticated user" defense generally focuses on the knowledge and sophistication of the employer as a corporate entity regarding the industry as a whole and the product or product's inherent hazards specifically.
Silicosis: Breathing Down on California; Texans Charge into State with Sometimes Shady Silicosis Suits
October 07, 2005
Brent Coon sees the future of lung litigation, and it's far beyond his Beaumont, TX, headquarters. Right now, he's hoping it's in San Francisco. "California's just another expansion in our drive to become a one-stop shop," the plaintiff lawyer said recently as he prepared for his June 1 takeover of another Texas firm's San Francisco office and caseload. Coon's presence ' and the recent filing of about 35 suits by the East Bay, CA, plaintiff firm Gwilliam, Ivary, Chiosso, Cavalli & Brewer in conjunction with a Texas firm ' are the latest signals that California is the Texans' testing ground for silicosis lawsuits.
Allocation: Still An Open Question in Wisconsin
October 06, 2005
Allocation often is a key issue in insurance coverage cases where courts have found that long-term bodily injury or environmental contamination has taken place over many years. Occurrence-based policies typically provide coverage only for damages from injury taking place during the policy period. In many cases, courts have found it impossible to determine as a matter of fact precisely when injury took place or how much injury took place in any given period. They have thus presumed that injury took place over the entire period — often a very lengthy period — during which it may have taken place (<i>eg</i>, from first "exposure" until diagnosis of the injury or discovery of the contamination).
