The Fifth Circuit Court of Appeals recently addressed the standard for a declaratory judgment action in the context of trademark rights. In Vantage Trailers, Inc. v. Beall Corporation, 567 F.3d 745 (5th Cir. 2009), Vantage filed civil action seeking declaratory judgment finding that its designed for a new aluminum bottom dump trailer would not infringe on any valid trademark rights of Beall Corporation.  Beall manufacturers and sells an aluminum bottom dump trailer which is protected by a registered trademark.  In early 2006, Vantage began designing its own aluminum bottom dump trailer.  In July 2006, Beall’s vice president sent a letter to Vantage stating that if your company places any trailers into service that violate any of Beall’s trademarks we will pursue legal action to stop the infringement. In response to the letter, Vantage filed a civil action seeking a declaratory judgment that Beall’s trademark is invalid and that the design of Vantage’s trailer did not infringe on any intellectual property rights of Beall’s.

Continue Reading Declaratory Judgment Action Still Requires Case or Controversy

In the wake of the Fraud Enforcement and Recovery Act of 2009 (FERA), which was enacted by Congress on May 20, 2009 and expands the federal False Claims Act, the Louisiana Department of Health and Hospitals (“DHH”) announced on October 29, 2009, a new fraud initiative against agencies who deliver in-home direct care to Medicaid beneficiaries.  DHH is partnering with the Louisiana Attorney General’s office to audit of all Medicaid in-home direct care providers. DHH will engage the services of six (6) audit firms to perform the audits.  Any potential fraud or abuse identified by the auditors will be reported to the Attorney General for prosecution. Funding for these audits will be provided by a $3,000,000.00 fund created with dollars previously recovered from fraudulent providers.

Continue Reading Louisiana Department of Health and Hospitals Plans to Audit All In-Home Direct Care Providers to Fight Medicaid Fraud

Nearly three years have passed since electronic discovery was formally introduced into the realm of discovery.  The scope of electronic discovery is broad- it includes discovery of “any information that can be stored electronically, including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or compilations—stored in any medium from which information can be obtained either directly, or if necessary, after translation by the responding party into a reasonably usable form.” However, the discovery of electronically stored information (“ESI”) is not without its limitations, thus lending comfort to those old dogs who do not want to learn new tricks. This article is aimed at fleshing out what limitations, if any, exist in the black hole of electronic discovery.

Read the entire article from Around the Bar by Katie D. Bell and reprinted with permission from the Baton Rouge Bar Association. 

Effective July 24, 2009, the federal minimum wage increased from $6.55 per hour to $7.25 per hour for all non-exempt employees.  The 2009 increase in the federal minimum wage was the third and final increase to the federal minimum wage pursuant to Fair Minimum Wage Act of 2007.  Under the 2007 Act, the minimum wage established by the Fair Labor Standards Act increased in three steps from $5.85 per hour effective July 24, 2007, to $6.55 per hour effective July 24, 2008, and to $7.25 per hour effective July 24.

Continue Reading Final Increase to Federal Minimum Wage in Effect Pursuant to the Fair Minimum Wage Act of 2007

The Louisiana Supreme Court has issued two decisions in the past year, Borel v. Young and Warren v. LAMMICO, which are favorable to Louisiana health care providers. In the Warren case, a potential plaintiff waited almost four years from the date of her father’s death to file a wrongful death and survival claim against the health care providers.  The plaintiff had not participated in the Medical Review Panel or filed a lawsuit within either the one and three year prescriptive periods (a.k.a. statute of limitations) required by La. R.S. 9:5628.  The plaintiff’s mother and sister had already filed a timely complaint with the Louisiana Patients’ Compensation Fund, proceeded with a Medical Review Panel, and subsequently filed a lawsuit.  The issue before the Court was whether the new plaintiff could file her own wrongful death and survival claim that would “relate back” to the original, timely claims of her mother and sister.

Continue Reading Louisiana Supreme Court Upholds Special Prescriptive Periods for Medical Malpractice Cases

The Office for Civil Rights of the U.S. Department of Health and Human Services issued new federal regulations on August 19, 2009 that requires health care providers, health plans, and other entities covered by the Health Insurance Portability and Accountability Act (HIPAA) to notify individuals when their “unsecured” health information is breached.

Continue Reading Office for Civil Rights Issues “Interim Final” Regulations Requiring Individuals To Be Notified of Breaches of Their Health Information

The Federal Trade Commission (“FTC”) announced on July 29th that the date on which the FTC will begin enforcement of the Red Flag Rules has been further extended to November 1, 2009. The Red Flag Rules, which are contained in regulations promulgated by the FTC under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et. seq., require “financial institutions” and “creditors” to adopt written identity theft prevention programs designed to prevent, detect and mitigate the effects of identity theft. The Red Flag Rules are applicable to any entity that meets the definition of a creditor and maintains covered accounts.

Under the Red Flag Rules, a “creditor” is defined as any entity that “regularly extends, renews, or continues credit, or any entity who regularly arranges for the extension, renewal, or continuation of credit.” For example, hospitals, physicians and other health care providers would be considered “creditors” under the Red Flag Rules if they as a regular business practice do not require all patients to pay for medical goods or services at the time that such goods or services are provided.

Continue Reading Federal Trade Commission Extends Enforcement Deadline of Red Flag Rules to November 1, 2009

The Louisiana Department of Environmental Quality (LDEQ) is developing written procedures to implement Louisiana’s antidegradation policy (1). These implementation procedures will significantly affect the permitting of wastewater discharges under the Louisiana Pollutant Discharge Elimination System (LPDES) program, especially the permitting of new or expanded discharges.

Continue Reading Louisiana’s Coming Antidegradation Policy Implementation Procedures

Recent court decisions show that patent infringement opinions are still important for any person or entity that becomes aware of a United States patent that is similar to their products, methods or processes.

Under federal patent law, anyone who either makes, uses, offers to sell, or sells any patented invention in the United States or actively induces another to do so is liable for patent infringement.  In addition to regular damages, courts may award up to three times the damages for willful infringement.  Under the 1983 Underwater Devices Inc. v. Morrison-Knudsen Co. opinion, if a party had actual notice of another person’s patent rights, then that party had an affirmative duty to exercise due care to determine whether that party was infringing those patent rights.  This affirmative duty included the duty to obtain patent infringement opinions prior to engaging in any potentially infringing activities.
Continue Reading Patent Infringement Opinions Continue To Be Important

On July 7, 2009, Louisiana Governor Bobby Jindal signed Act 442 (SB 9) into law, preserving Louisiana’s long-standing law excluding purchases, rentals and repairs of component parts of immovable property from state and local sales/use tax. Under a law enacted in 2008, purchases of several items previously considered non-taxable component parts of buildings and other immovables (e.g., installed commercial refrigerators and other commercial and industrial fixtures) could have been subjected to state and local sales/use tax. Many taxpayer representatives questioned the constitutionality of the 2008 Act and legislators agreed that it was not their intention to increase sales/use taxes during the 2008 Legislative Session. Act 442 became effective when it was signed by the governor and applies retroactively to all transactions occurring after the July 1, 2008 effective date of the 2008 Act.

Continue Reading Definition of Component Parts Clarified for Louisiana Sales and Use Tax Purposes