Category Archives: Uncategorized

Mayor, City Council back off of fair scheduling ordinance

There had been movement in the Fair Scheduling Ordinance for Minneapolis.  This ordinance sought to have pay for workers if their schedule was cancelled or changed.  Businesses raised the concern of paying when there were weather emergencies.

Minneapolis Mayor Betsy Hodges and City Council leaders have backed off from including fair scheduling protections in an ordinance moving through the City Council.

That ordinance had several points, including a $15 minimum wage, paid sick time, wage theft enforcement, and fair scheduling.

A public hearing is set for November 4th at 10am for the Working Families Agenda.

You can read more about it from the Minneapolis City Council website here.

Source: Mayor, City Council back off of fair scheduling ordinance

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President Obama orders paid sick leave

On Labor Day, President Obama issued an executive order mandating that federal contractors had to pay their employees sick leave.

The order mandates that workers accrue 1 paid sick hour for every 30 hours worked – up to 7 paid sick days a year.

This is a big and positive change for the workforce given that employees do not have a guaranteed right to get sick days.  In MN, if employers provide sick days to its employees, then the Sick Day statutes apply. See MN Stat. 181.9413.

Source: President Obama paid leave order could help 300K – CNNPolitics.com

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NLRB rules on Joint Employer Test

The NLRB, in Browning-Ferris Industries, has refined the test used to determine if a company is a joint employer.

In the decision, the Board applies long-established principles to find that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law;  and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors — consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.

Source: Board Issues Decision in Browning-Ferris Industries | NLRB

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Gene patents: Sup.Ct. provides a guide

Some time ago, I posted about a case about patenting genes.  In Ass’n for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398 (2013), Myriad was trying to patent genes.  Their argument, in summary, was that because they isolated a gene, they had the right to patent it.  The question is really whether it is a product of nature or manmade.  Here, the Supreme Court stated some DNA genes could not be patented, while another was.

The decision explained under what circumstances DNA can be patented and cannot be patented.  The DNA (BRCA1 and BRCA2) in this case involved genes which can involve mutations that increase the likelihood of breast cancer.  Regarding these genes, the Supreme Court ruled against the patent because it held that merely isolating the DNA gene does not make the DNA segment patent eligible.

The Supreme Court explained that Myriad isolated the gene and identified its precise location and genetic sequence.  Myriad did not create or alter the genetic information encoded in the genes (BRCA1 and BRCA2).  In addition, the Supreme Court noted that a new nonnatural occurring molecule is not created by isolating the DNA.  The patent focused on the information contained in the genetic sequence.  If another where to use the process, the same molecules in the genetic sequence would be seen.

However, the case also discussed a different synthetic gene, which the Supreme Court ruled could be patented.  Myriad created cDNA molecule by removing the introns from the DNA sequence.  The creation of cDNA resulted in a exons-only molecule.

 

Exons-only molecules are not naturally occurring.  Both parties agreed that cDNA differs from natural DNA in that the non-coding regions have been removed.  Even though the nucleotide sequence of cDNA is dictated by nature, the Supreme Court held:

the lab technician unquestionably creates something new when cDNA is made.  cDNA retains the naturally occurring exons of DNA, but it is distinct from the DNA form which it was derived.  As a result, cDNA is not a “product from nature” and is patent eligible under s101, except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA.  In that situation, a short strand of cDNA may be indistinguishable from natural DNA.

(italics added).  Consequently, the Supreme Court held that cDNA was patentable.

So what does this mean?  When genes are not altered or created, the gene is not patentable.  When a company isolates the DNA to figure out where it is in the gene and its sequence, the company is not creating a new DNA or altering the DNA.

So how can a gene be altered or created?  When the technician is creating a cDNA sequence from mRNA results in an exons-only molecule that is not naturally occurring.

via Details on Association for Molecular Pathology v. Myriad Genetics, Inc. : SCOTUSblog.

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Sup. Ct. March Calendar

Next month, the Supreme Court will be hearing high profile cases – including the gay marriage debate (California’s Proposition 8 and DOMA), as well as voter registration laws.  In addition, the Supreme Court will hear a variety of important issues, such as class arbitration waivers, generic pharmaceutical regulations, and reimbursement or payment under the Takings Clause.

The following are the oral arguments scheduled for March.

Monday March 18

Arizona v. Inter Tribal Council of Arizona:

  1. Whether the 9th Circuit erred in creating a new, heightened preemption test under Art. 1, Sec. 4, Cl. 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to the Supreme Court’s authority and conflicts with other circuit court decisions; and
  2. Whether the 9th Circuit erred in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote.

Bullock v. Bankchampaign

  1. What degree of misconduct by a trustee constitute “defalcation” under Sec. 523(a)(4) of the Bankruptcy Code that disqualifies the errant trustee’s resulting debt from a bankruptcy discharge, and whether it includes actions that result in no loss of trust property.

Tuesday March 19

Sebelius v. Cloer

  1. Whether a person whose petition under the National Vaccine Injury Compensation Program is dismissed as untimely may recover from the United States an award of attorney’s fees and costs.

Mutual Pharmaceutical Co. v. Bartlett

  1. Whether the 1st Circuit erred when it created a circuit split and held – in clear conflict with this Court’s decisions in PLIVA v. Mensing, Riegel v. Medtronic, and Cipollone v. Ligget Group – that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products.

Wednesday March 20

Horne v. Dept. of Agriculture

  1. Whether the 9th Circuit erred in holding, contrary to the decisions of 5 other circuit courts of appeals, that a party may not raise the Takings Clause as a defense to a “direct transfer of funds mandated by the Government,” E. Enterp. v. Apfel, but instead must pay the money and then bring a separate, later claim requesting reimbursement of the money under the Tucker Act in the Court of Federal Claims; and
  2. Whether the 9th Circuit erred in holding, contrary to the decision of the Federal Circuit, that it lacked jurisdiction over petitioner’s takings defense, even though petitioners, as “handlers” of raisin under the Raisin Marketing Order, as statutory required under 7 USC 608c(15) to exhaust all claims and defenses in administrative proceedings before the United States Department of Agriculture, with exclusive jurisdiction for review in federal district court.

Dan’s City Used Cars v. Pelkey

  1. Whether state statutory, common law negligence, and consumer protection act enforcement actions against two-motor carrier based on state law regulating the sale and disposal of a towed vehicle are related to a transportation service provided by the carrier and thus preempted by 49 USC 14501-c-1.

Monday March 25

Oxford Health Plans v. Sutter

  1. Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the 2nd and 3d Circuits have held) or exceeds those powers (as the 5th Circuit has held) by determining that parties affirmatively “agreed to authorize class arbitration,” Stolt-Nielsen S.A. v. Animalfeeds Int’l Corp., based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.

Federal Trade Commission v. Actavis

  1. Whether reverse-payment agreements are per se lawful unless the underlying patent litigation was a sham or the patent was obtained by fraud (as the court below held), or instead are presumptively anticompetitive and unlawful (as the 3d Circuit has held).

Tuesday March 26

Hollingsworth v. Perry

  1. Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and
  2. Whether petitioners have standing under Art. III, Sec. 2 of the Constitution in this case.

Wednesday March 27

United States v. Windsor

  1. Whether Section 3 of the Defense Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; 
  2. Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and
  3. Whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

via New March argument calendar : SCOTUSblog.

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Lower pay for related care givers struck down

Minnesota Lawyer (Dec. 24, 2012, subscription required) has an interested article regarding Minn. Stat. 256B.0659 (2011).  In 2011, the Minnesota legislature passed a bill stating that non relative personal care attendants were to receive a pay rate of 80% of the non relative pay.  In other words, relative personal care attendants would receive a 30% pay cut.  In Healthstar v. Home Health, Inc. v. Jesson, the Court of Appeals reversed the Ramsey District Court decision.  The court struck down the statute.

The court held that the statute did not meet the prong of showing that the bill was not manifestly arbitrary of fanciful, but that it must be genuine and substantial.  The court stated that the commissioner’s argument was “based on an assumption that relative PCAs will continue to provide care even if affected by a pay cut.”

The court further stated that “the rationale for the distinction advanced by respondent is based purely on assumptions rather than facts, including the apparently unchallenged assumption that a moral obligation to provide care for a relative necessarily equates to a moral obligation to personally provide such care at a lower rate of pay than a nonrelative PCA would receive for the same work.”

The Court of Appeals also held that the statute did not meet the prong that the classification must be genuine or relevant to the purpose of the law.  The court stated that the commissioner did not show any facts in support of its assumption.

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Wireless networks and the FCC

The Federal Communication Commission has proposed the creation of the Advanced Wireless Services (AWS) H Block, which would extend the Personal Communications Services (PCS) band by 10 megahertz, for flexible use. The PCS is heavily used by Verizon, Sprint, AT&T and T-Mobile, the nations big four providers, as well as their rural counterparts.

The additional spectrum is meant to help maintain the speed and capacity of the nations wireless networks amid the unprecedented demand for mobile service.

If approved, the new rule would mark the FCCs first step in implementing a Congressional directive in the Middle Class Tax Relief and Job Creation Act of 2012, more widely known as the “payroll tax cut.”  The act calls for an establishment of a national public safety broadband network, which will expand high-speed wireless broadband and give better access to first responders, such as fire and police, in an emergency.

“Wireless broadband is a key component of economic growth, job creation and global competitiveness because consumers are increasingly using wireless broadband services to assist them in their everyday lives,” the FCC said in its bandwidth proposal.

The FCC plans to grant new initial licenses for the 1915-1920 MHz and 1995-2000 MHz bands, known as the lower H block and the upper H block, respectively. A system of competitive bidding will determine who is granted the commercial use licenses.

The plan to extend the bandwidth includes licensing the H block as paired five-megahertz blocks, with the upper block used for high-power base stations and the lower block for mobile and low power fixed operations. The licensing will also be based on a geographic and economic area scheme.

“We seek to adopt a service area size for the H Block that meets several statutory goals,” the FCC said in its bandwidth proposal. “These include facilitating access to spectrum by both small and large providers, providing for the efficient use of the spectrum, encouraging deployment of wireless broadband services to consumers, especially those in rural areas, and promoting investment in and rapid deployment of new technologies and services consistent with our obligations under section 309j of the Communications Act.”

via Courthouse News Service.

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AIG decides not to join lawsuit against government

The board of American International Group won’t be joining a $25 billion lawsuit that claims shareholders were harmed by onerous terms of the insurer’s government bailout.

The board announced its decision on Wednesday, report the New York Times Taking Note blog and the Associated Press. AIG has repaid the United States for the $182 billion bailout, resulting in a government profit of $22.7 billion.

A company run by one-time AIG chief executive Maurice Greenberg filed the suit in November 2011. The company, Starr International, once owned 12 percent of AIG. The complaint alleged the government charged “punitive” interest rates on its loans and enabled a “backdoor bailout” of the insurer’s Wall Street clients by using AIG money to pay off credit default swaps. Greenberg is represented by David Boies in the suit, which argues a Fifth Amendment takings violation.

AP spoke to Columbia law professor John Coffee about AIG’s decision. “The majority of directors decided that the reputational damage was greater than the possibility on a long-shot lawsuit,” he said.

via AIG Won’t Join Suit Claiming Its Government Bailout Harmed Shareholders – News – ABA Journal.

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AIG considers lawsuit against government

AIG is considering joining a lawsuit against the US government claiming that the bailout harmed its shareholders.  Starr International, a company that once owned 12% of AIG, will ask the AIG board to join its lawsuit against the government.

The complaint filed in November 2011 alleged that the government charged a “punitive” interest rates on its loans and enabled a “backdoor bailout” of the insurer’s Wall Street clients by using AIG money to pay off credit default swaps.

If AIG decides to join the lawsuit, AIG could face additional shareholder lawsuits if it decides against joining the $25 billion suit and the action ultimately proves successful, according to the New York Times DealBook Blog.

 

via AIG Considers Joining Suit Claiming Its Government Bailout Harmed Shareholders – News – ABA Journal.

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Happy Holidays!

Happy holidays!

This blog will be taking a hiatus due to the holidays.  Legal news posts will back on January 3rd.

 

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