Kean Miller

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There is old adage that goes something like this, “if you always do what you always have done, you will always get what you always have got”. This philosophy may be partly to blame for the catastrophic losses that befell a seemingly unprepared New Orleans. Why should New Orleans have feared or even prepared for this potential? New Orleans did not suddenly sink below sea level�it was built that way.
Continue Reading Taking Stock of Your Insurance Post-Katrina

The Office of Inspector General (OIG) concluded in Advisory Opinion No. 06-02 issued on March 21, 2006 that two programs proposed by a durable medical equipment (DME) manufacturer to physician practices would create a significant risk of fraud and abuse. The OIG also commented that it could impose administrative sanctions on the physician practices and DME manufacturer under the Federal anti-kickback law and other federal statutes and regulations if these proposed programs were utilized.
Continue Reading OIG Comments on Proposed Durable Medical Equipment Arrangement By Physician Practice and Supplier

On March 17, 2006, the Court of Appeals for the D.C. Circuit vacated EPA’s final Equipment Replacement Provision rulemaking which attempted to establish a bright-line test for routine maintenance, repair and replacement (RMRR) in New York v. EPA, No. 03-1380 (D.C. Cir. 2006). To vacate a rule is to rescind and set it aside entirely (as opposed to a remand which would have sent it back to the agency for further justification.)
Continue Reading D.C. Circuit Vacates Equipment Replacement Provision (ERP) Rulemaking

Many C-Level executives and small business owners have heard of the Gulf Opportunity Zone (the GO Zone Act) and know that it does something for Louisiana businesses, but they do not know if or how the new law can help them and their employees. Kean Miller has prepared a comprehensive summary of the GO Zone Act and its sister law, the Katrina Emergency Tax Relief Act of 2005 (“KETRA”). This summary describes the key legislative provisions and explains how Louisiana-area businesses, both large and small, can maximize the GO Zone benefits available to them.
Continue Reading What is the Gulf Opportunity Zone?

On March 22, Kean Miller, Regions Bank, Latter & Blum, Morgan Keegan, Laporte Sehrt Romig Hand CPAs, New Orleans CityBusiness magazine, and the Algiers Economic Development Foundation will present an important Gulf Opportunity Zone Workshop. Instead of a recitation of the existing GOZone legislation, the workshop will feature an overview of the effect that the legislation will have on Louisiana’s immediate economic future presented by noted economist Dr. Loren C. Scott. After Dr. Scott’s presentation, the sponsors will present three interactive case studies designed to teach businesses how to take advantage of this unique situation.

Online Invitation: http://www.latterblum.com/gozone/gozoneinvite.html

Registration form: http://www.latterblum.com/gozone

March 22, 2006
8:00 a.m. – 1:00 p.m.
PanAmerican Life Center
New Orleans, Louisiana

Admission is free of charge.
Continue Reading Gulf Opportunity Zone Workshop

The United States District Court for the Western District of Louisiana, Magistrate Judge Hayes, issued a ruling on February 27, 2006, denying remand in a case involving the Class Action Fairness Act of 2005 (“CAFA”). The case is Robinson v. Cheetah Transportation, 2006 WL 468820 (W.D. La. 2/27/06). As I am still somewhat unfamiliar with CAFA, I will examine its application here in a bit more detail than I might otherwise employ with, say, “meat and potatoes” issues like the potestative condition, the doctrine of renvoi, or stipulations pour autrui.

Cautionary note: the district court judge will review the magistrate’s ruling, if objected to, and an appeal could follow. The decision is far from final.

You should also be forewarned that, according to acronymfinder, there are thirty-two (32) different applications for the acronym “CAFA,” including the “Canadian Association of Freediving and Apnea.” But I digress.

On October 7, 2004, a tractor-trailer struck the Columbia bridge on the Ouachita River in Caldwell Parish. The bridge was closed (and I think it’s still closed). Plaintiff brought a class action on November 28, 2005, on behalf of “all persons and businesses that resided or worked in Caldwell Parish on October 7, 2004, and were affected by the closure of the Columbia bridge.” (Here’s a somewhat pensive related news blurb.) Among other consequences of the accident, the Louisiana Art and Folk Festival was cancelled.
Continue Reading Class Action Fairness Act of 2005 – Western District Ruling

In Turner v. Murphy Oil USA, Inc., 2006 WL 286009 (E.D. La. 2006), a mass tort class action arising from a crude oil spill in Chalmette during Hurricane Katrina, Judge Fallon certified a class, and Murphy appealed that ruling. Pending the appeal, having denied a stay, Judge Fallon ordered notice to the class pursuant to Rule 23(c)(2) of the Federal Rules of Civil Procedure. Plaintiffs opposed affording an opt-out provision in the notice, on the basis that the definition of the class could be modified by the Fifth Circuit, thus requiring follow-up notice, but Judge Fallon thought it important to inform potential class members of the consequences of opting out immediately, in view of Murphy’s ongoing settlement program.
Continue Reading Class Action Notice, Federal Question Jurisdiction, Protection of Customer Data, Supreme Court Examines Reach of Clean Water Act

In Wyeth, Inc. v. Gottlieb, 2006 WL 335602 (Fla.App. 3 Dist.), Florida’s Third District Court of Appeal reversed the trial court’s certification of a Prempro (conjugated estrogen and progestin) medical monitoring class. The court of appeal focused upon the “highly individualistic” nature of causation determination, which depended on individual characteristics and risk factors of the claimant, the dosage, the duration of consumption, other medications being taken, and knowledge of risks. The court also found that these considerations required individual customization of any medical monitoring plan. The evolution in what Wyeth knew, and warned about, over a 10-year period also strongly militated against class certification.
Continue Reading Two Recent Decisions of Note on Class Certification, Removal/Remand

In 1999, the Institute of Medicine reported that an estimated 98,000 people die each year as a result of medical errors. On July 29, 2005, nearly six years after that notable report, President Bush signed into law the Patient Safety and Quality Improvement Act of 2005 (the “Act”). This new legislation seeks to reduce the number of future medical errors by creating a national medical error reporting system.
Continue Reading New Law Establishes National Database for Reporting Medical Errors