Local Law Blogs

CMS and Other Federal Agencies Issue Proposed Regulations Regarding Accountable Care Organizations

Posted on March 31, 2011
By Clay J. Countryman On March 31, 2011, the Centers for Medicare & Medicaid Services (CMS) and other Federal agencies issued long anticipated proposed regulations addressing legal issues and other requirements for Accountable Care Organizations (ACOs) participating in the Medicare Shared Savings Program created last year by the health care reform legislation...

ADA Amendments Act Has Arrived

Posted on March 28, 2011
By A. Edward Hardin, Jr. In a press release from Thursday, March 24, 2011, the EEOC announced the  approval of the final regulations for the ADA Amendments Act.  The final regulations were published on Friday, March 25, 2011, in the Federal Register...

ADA Amendments Act Regulations Have Arrived

Posted on March 28, 2011
By A. Edward Hardin, Jr. In a press release from Thursday, March 24, 2011, the EEOC announced the  approval of the final regulations for the ADA Amendments Act.  The final regulations were published on Friday, March 25, 2011, in the Federal Register...

Application of Pesticides That May Impact Waters of the State Now Require LPDES Permit

Posted on February 22, 2011
By R. Lee Vail The Louisiana Department of Environmental Quality ('LDEQ') announced a final rule change, effective April 11, 2011, that deletes an exemption from water discharge permitting for pesticides applied directly or near waters of the state(1)...

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Settlement Reached in the NLRB Facebook Case

Posted on February 15, 2011
By Erin L. Kilgore On February 7, 2011, the NLRB and a private employer reached a settlement regarding the employer's termination of an employee allegedly based, in part, on Facebook posts made by the employee. However, because the case had not made it through the courts, employers and employees will have to continue to wait for a definitive decision regarding the legality of disciplining an employee for his or her postings about a supervisor on a personal social media platform...

Where Do You Stand on the Subject of Accountable Care Organizations?

Posted on February 14, 2011
By Linda G. Rodrigue The Patient Protection and Affordable Care Act that was promulgated in March, 2010, includes provisions for creating Accountable Care Organizations ('ACO'). An ACO is an 'organization' that is intended to manage the care of a minimum of 5,000 Medicare beneficiaries, with the purpose of improving outcomes to those beneficiaries...

Supreme Court Holds Title VII Retaliation Claim Available to Terminated Fiancé

Posted on February 09, 2011
By Theresa R. Hagen The Supreme Court recently struck a blow to employers and made another expansion to the scope of Title VII's retaliation provisions. By its January 24, 2011 decision in Thompson v. North American Stainless, LP, --U.S. --, 2011 WL 197638 (2011), the court overturned a Sixth Circuit decision which had affirmed the dismissal of the retaliation claims brought by a terminated fiancé of another employee who had brought a sexual harassment charge...

EPA Denies Reconsideration of One-hour Sulfur Dioxide Standard

Posted on February 08, 2011
By R. Lee Vail On January 26, 2011, the U.S. EPA denied petitioner's request to reconsider the newly promulgated one-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS). See, 76 Fed. Reg. 4780. The EPA determined that the objections raised were not of 'central relevance' purportedly because they failed to support an argument that the promulgated standards should be revised...

Court Recharacterizes S Corporation Dividend to Shareholder-Employee as Wages

Posted on February 07, 2011
By Kevin C. Curry A recent federal district court case (Watson v. U.S., 107AFTR 2d 2011-311) has held that the IRS could recharacterize purported dividend payments to an S corporation shareholder-employee as wages. In this case, a CPA was a sole shareholder, employee, director and officer of a professional corporation that was taxed as an S Corporation...

Louisiana Supreme Court Refuses to Review Net Operating Loss Decision

Posted on February 03, 2011
By Chris Dicharry and Jenny Phillips The Louisiana Supreme Court has refused to review the decision of the First Circuit Court of Appeal in ConAgra Foods, Inc. vs. Bridges, 2010-0907 (La. App. 1st Cir. 10/29/10), 48 So.3d 1249. In ConAgra Foods, the First Circuit determined that ConAgra Foods, Inc...

New Federal Estate Tax and Gift Tax Legislation

Posted on January 31, 2011
By Carey J. Messina and Kevin C. Curry After a long delay, Congress has passed and President Obama has signed into law the new federal estate and gift tax legislation. It has been very difficult for some individuals to prepare an appropriate estate plan not knowing what the potential federal estate and gift taxes will be...

The Cy Pres Doctrine: A Settling Concept

Posted on January 27, 2011
By Charles S. McCowan, Jr. and Calvin C. Fayard, Jr. Following a class action or mass joiner settlement certain funds are often unable to be distributed to individual class members.  Either class members do not come forward to file the necessary proof of claim to qualify for an allocation and distribution, the allowed claims do not equal the available settlement funds, reserves or allocations for class costs and expenses are not exhausted, distributions of monies to individual class members have been found impracticable because the amounts owing to each individual plaintiff are exceedingly small and/or calculation of the amount due each individual would be excessively difficult and costly...

Department of Justice Continues to Use Data Mining of Billing Errors in False Claims Act Settlements with Hospitals under Kyphoplasty Initiative

Posted on January 26, 2011
By Clay J. Countryman On January 4, 2011, the U.S. Department of Justice (DOJ) announced that seven additional hospitals had agreed to pay $6.3 million to resolve allegations under the False Claims Act (FCA) related to overcharging Medicare for kyphoplasty procedures...

Six Myths of the Revocable Living Trust

Posted on January 25, 2011
By Carey J. Messina and Kevin C. Curry As estate planning attorneys, we receive calls from clients concerning the use of revocable living trusts in estate planning. The general public is invited to seminars on the subject, they receive literature in the mail, and, in some cases, receive in-home visits from parties, who are usually not attorneys, who advocate the use of the revocable living trust...

Louisiana Second Circuit Court of Appeals Upholds Application of Subsequent Purchaser Doctrine in Oilfield Legacy Case

Posted on January 20, 2011
By Lou Grossman In a recent decision, the Louisiana Second Circuit Court of Appeals upheld the application of the longstanding subsequent purchaser doctrine to an oilfield legacy case.  The decision Wagoner v. Chevron U.S.A. Inc., et. al., No. 10-45507 (La...

State Tax Nexus Issues

Posted on January 13, 2011
By G. Blane Clark, Jr. and Mattew Meiners As companies expand their operation into foreign states, it is essential to determine the potential tax liability for conducting business in those jurisdictions.  Although states differ as to their treatment of out-of-state taxpayers, all states are bound by the U...

New View. Same Vision.

Posted on January 10, 2011
Kean Miller is pleased to announce the relocation of its downtown Baton Rouge headquarters from One American Place to 80,000+ square feet of re-imagined law office space in II City Plaza effective today, Monday, January 10, 2011. II City Plaza is the only Class A office space constructed in Baton Rouge in the last 25 years...

A Recent U.S. Fifth Circuit Decision Shows the Importance of Including a Release of "Any and All Claims" in a Settlement Agreement

Posted on January 05, 2011
By Sean T. McLaughlin When drafting a settlement agreement, the parties almost always have competing interests. The Plaintiff will push for a vaguely-worded settlement in an attempt to take another 'bite-at-the-apple' down the road; the Defendant will push for a broad, all-encompassing release of liability (i...

Is the Limitation of Liability Act Going to Sink with the Deepwater Horizon?

Posted on January 03, 2011
By Karen Waters Shipman The recent tragedy involving the Mobile Offshore Drilling Unit Deepwater Horizon has shed a very bright and very public light on a much and often litigated 159-year old law previously known to very few outside of the maritime industry—the Shipowner's Limitation of Liability Act, ('the Limitation Act'), 46 U...

Landlord Entitled to Immediate Possession of Possession of Premises

Posted on December 29, 2010
By J. Eric Lockridge Does a tenant's failure to expressly assume a commercial lease within 120 days of filing bankruptcy give its landlord the right to immediate possession of the leased premises? Yes, according to several recent court decisions. The bankrupt tenant's landlord is entitled to immediate possession of the leased premises, without going through the time and expense of moving to lift the automatic stay and pursuing an eviction in state court, or commencing an adversary proceeding in the bankruptcy court...

District Courts Continue To Agree That Production SPARs Are Not Vessels

Posted on December 28, 2010
By R. Lee Vail A spar is a nautical structure designed to float with the bulk of the hull below the waves-something akin to a giant buoy. Fields v. Pool Offshore, Inc., 182 F.3d 353(5th Cir. 1999). Spars are essential to the expansion of oil production in deep water and their use has led to the legal question of their status...

Health Care Reform Advisory: CMS Solicits Comments to Compliance Program Requirements

Posted on December 21, 2010
By Clay C. Countryman The Centers for Medicare & Medicaid Services (CMS) recently issued a Proposed Rule in the September 23, 2010 Federal Register to implement certain program integrity changes mandated by the Patient Protection and Affordable Care Act ('ACA' or 'Health Care Reform Legislation')...

EPA Issues Greenhouse Gas (GHG) Permitting Guidance

Posted on December 16, 2010
by R. Lee Vail New major and modified existing stationary sources require air permits prior to beginning construction. Where increases of criteria pollutants  such as sulfur dioxide, nitrogen dioxide, carbon monoxide, particulate and volatile organic compounds exceed a 'significance' threshold, the permittee is required to analyze available and technically feasible control technology with the goal of selecting the best available control technology (BACT) for new or modified emissions units...

Facebook and the NLRB: NLRB to Weigh In Regarding Employee's Negative Comments About Her Supervisor

Posted on November 08, 2010
By Erin L. Kilgore Employers are struggling with how to respond to employee use of social media, particularly whether and/or how to respond to – or prevent – employees from posting comments about their employers on their personal social networking platforms, such as Facebook, My Space, and Twitter...

Insured's Allegations May Trigger Insurer's Duty to Defend

Posted on November 04, 2010
By Todd A. Rossi In Louisiana, an insurer's duty to defend it's insured typically depends on the 'four corners rule,' in which the court examines the allegations contained in the plaintiff's petition and the terms of the insurance policy.  If there is the possibility of coverage, the insurer's duty to defend is triggered...

Insurer Obligated to Pay Portion of Settlement without Determination of Insured Liability

Posted on October 29, 2010
By Todd A. Rossi In Perkins v. Entergy Corp., 2010 WL 2332357 (June 10, 2010), the Louisiana Third Circuit Court of Appeal held that a non-settling insurer was obligated to pay an allocated amount of the settlement in which it did not participate.  The suit arose out of a flash fire at an industrial facility that caused significant bodily injury...

Louisiana Contractors Doing Business in Mississippi Must Attach Louisiana's Resident Bidder Preference Laws or Risk Losing Public Bids

Posted on October 22, 2010
By Casey E. Faucon On March 17, 2010, Mississippi Governor Harbour signed into law an amendment to Mississippi's public bid law, more specifically, to Mississippi's resident 'preference law.' Miss. Code Ann. § 31-3-21(3). Under this recent amendment, all non-Mississippi resident contractors who bid on Mississippi public works contracts must attach to their bid a copy of their own state's bidder preference laws...

Piercing the Veil of an LLC - The Fourth Circuit Weighs In

Posted on October 15, 2010
By Matthew C. Meiners The application of corporate veil piercing theories to limited liability companies is still in its early stages in Louisiana jurisprudence. In Hollowell v. Orleans Regional Hosp. LLC, the U.S. Court of Appeals for the Fifth Circuit became the first court applying Louisiana law to pierce the veil of a Louisiana limited liability company on an 'alter ego basis,' adopting from corporate veil piercing jurisprudence a non-exhaustive list of factors, namely: 1) commingling of corporate and shareholder funds; 2) failure to follow statutory formalities for incorporating and transacting corporate affairs; 3) undercapitalization; 4) failure to provide separate bank accounts and bookkeeping records; and 5) failure to hold regular shareholder and director meetings...

Supreme Court Decides Long-Awaited Patent Case

Posted on October 15, 2010
By Russel O. Primeaux In one of its last acts before its summer 2010 recess, the United States Supreme Court issued its opinion in the long-awaited case of Bilski v. Kappos (S.Ct. 2010 80-964). In the Bilski case, the inventor was seeking to obtain a patent on a method of hedging risk...

Beware: Arbitration

Posted on October 13, 2010
By David K. Nelson In an arbitration, the parties agree to hire one or more neutral third parties to hear the dispute and issue a ruling.  The parties further agree to abide by that ruling.  If one party fails to do so, the ruling can be enforced by a court of law just as if an actual judgment had been entered...

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