EpsteinBeckerGreen Obtains Protective Order

On April 6, 2010, EpsteinBeckerGreen achieved a big win for its client, the Mount Sinai School of Medicine (the "Medical School"). Defense counsel representing Kentile Floors, a defendant in an asbestos personal injury litigation, subpoenaed the Medical School seeking all of the research records and personal correspondence of Dr. Irving Selikoff, a now deceased former member of the Medical School's faculty. Dr. Selikoff's work is world renown as he was the first to identify the link between asbestos exposure and disease. Defense lawyers have striven for years to discredit Dr. Selikoff's research in the asbestos litigation. The Medical School is constantly fending off these subpoenas and dealing with related litigation. Other research institutions face similar challenges and have expressed the concern that a court ruling requiring the Medical School to produce the private correspondence and memoranda of a faculty member not otherwise involved in the underlying litigation would have a chilling effect on the willingness of other scientists whose research would benefit public health or enhance workplace safety. EpsteinBeckerGreen successfully fought back this latest effort and was rewarded with an excellent and strongly worded decision that provides most significantly that the:

expense Mt. Sinai would incur as a result of such a broad interpretation of the subpoena could well discourage other institutions from conducting vital health and safety research. Other scholars in the laboratory may fear that their unpublished notes, observations and ideas could be released to the public as a result of litigation. Although a scholar's right to academic freedom is not absolute, it should factor into a court's analysis on whether forced disclosure of documents in permissible (see, In R.J. Reynolds Tobacco Co., 136 Misc.2d supra at 287).

The EpsteinBeckerGreen team that represented the Medical School included New York attorneys William A. Ruskin, Beth Essig, and Victoria M. Sloan.

EpsteinBeckerGreen Obtains Dismissal of Major Claims in ‘Excessive Force' Suit

EBG's litigation team obtained a dismissal of the major claims in an "excessive force" lawsuit brought in federal court by a New York Post newspaper photographer against a major hospital after the reporter was arrested by special patrolmen employed by the hospital. The photographer refused an order to leave the hospital's property (the steps leading to a hospital building) where he was waiting to photograph a celebrity who was planning to visit his brother, a patient. The Court held that, because the First Amendment did not give the photographer the right to enter private property, the order to leave was valid. When he refused, the officers had the right to exercise their state-granted power to arrest him for trespass and resisting arrest. The Court also determined based on video footage captured by several surveillance cameras and the photographer's own audio recording of the incident that there was no genuine issue of material fact and that the officers as a matter of law did not use excessive force, even though the photographer sustained a shoulder injury. Kalfus v. The New York and Presbyterian Hospital, et al., 07 Civ 11455(DAB) (3/31/10).

The EpsteinBeckerGreen team representing the client-hospital included New York Litigation attorneys Kenneth J. Kelly and Michael Liberman.

EpsteinBeckerGreen Negotiates Very Favorable Settlement of False Claims Act Case

On February 2, 2010, EpsteinBeckerGreen attorneys successfully executed a very favorable settlement for their client, AtriCure Inc., in a False Claims Act (FCA) case that began with a qui tam relator's charges filed in 2007. AtriCure is a developer and manufacturer of cardiac surgical ablation devices.

This case presented sophisticated claims relating to alleged improper off-label promotion. This is an issue that has become a high priority for Department of Justice enforcement of which both drug and device manufacturers and distributors should be aware.

The settlement, based on an ability-to-pay methodology accepted by the government, requires AtriCure to pay total of $3.8 million, plus interest, periodically over five years; resolves issues of potential FCA and common law violations relating to the marketing practices of AtriCure's surgical ablation devices; and includes AtriCure's declaration that the company and its employees haven't engaged in any wrongdoing or illegal activity. The settlement agreement has been approved and resolves a related qui tam matter, which EpsteinBeckerGreen attorneys have been handling, regarding AtriCure's marketing of the devices. (EpsteinBeckerGreen also represents AtriCure in a related and ongoing private securities class action.) Additionally, AtriCure signed a corporate integrity agreement with the Office of Inspector General of the U.S. Department of Health and Human Services.

The EpsteinBeckerGreen team that represented AtriCure was led by Stuart M. Gerson, a leading litigator and national authority on the FCA.

EpsteinBeckerGreen Successfully Secures Dismissal of Complaint Alleging Breach of Fiduciary Duty

EpsteinBeckerGreen attorneys successfully moved for dismissal of a complaint seeking more the $2.4 million arising from an alleged breach of contract and negligence against EpsteinBeckerGreen client 1740 Advisers Inc. Plaintiffs were two limited-purpose mutual fund trusts and their investment advisor, Diversified Investment Advisors, Inc. Plaintiffs alleged that 1740 Advisers breached its contracts to act as subadvisor for the funds, and acted negligently, by making certain purchases and redemptions of Enron commercial paper during the fall of 2001, just prior to Enron's collapse. The redemptions, which were made just a few days before the maturity dates for the commercial paper, were later alleged by the Enron bankruptcy trustee to be avoidable as improper preferences under several sections of the Bankruptcy Code. Plaintiffs sued 1740 Advisers, after plaintiffs settled with the bankruptcy trustee following years of litigation, for the settlement amount plus attorneys' fees. 1740 Advisers moved to dismiss the complaint.

EpsteinBeckerGreen prevailed with the arguments that the allegations in the complaint were too conclusory to state a claim for breach of contract as to the purchases of the Enron paper in light of 1740 Adviser's contractual discretion to invest on behalf of plaintiffs within specified parameters. As to the sales of the paper back to Enron on the eve of its collapse, EpsteinBeckerGreen contended, and the Court agreed, that 1740 Advisers had discretion to make trades on behalf of Diversified and the funds, and nothing in the complaint showed that 1740 Advisers abused that discretion – even though other entities who sold paper back prior to maturity were ultimately denied summary judgment on their safe harbor claims. The negligence claim was also dismissed as duplicative of the contractual obligations.

The motion was prepared by EpsteinBeckerGreen attorneys Kenneth J. Kelly and Aime Dempsey.

EpsteinBeckerGreen Achieves Victorious Result in Union Election

On December 1, 2009, EpsteinBeckerGreen, on behalf of its client, won a significant victory in a union election in Massachusetts. The client is an office equipment transportation and leasing company.

The NLRB-conducted election was the result of a petition filed by the Teamsters seeking to represent a bargaining unit made up of all drivers.  EpsteinBeckerGreen helped to design and implement a coordinated election strategy aimed at increasing the knowledge of the drivers regarding union representation, as well as combating the union's statements while emphasizing the benefits already enjoyed by the drivers.  The drivers ultimately voted against union representation.

The EpsteinBeckerGreen team included Jay P. Krupin and Paul Rosenberg of the Washington, DC office and Mark M. Trapp of the Chicago office.

EpsteinBeckerGreen Successfully Defends Client in Whistleblower Case

On October 21, 2009, EpsteinBeckerGreen won a jury trial for its client Nycomed US Inc. ("Nycomed"), in a whistleblower case alleging violation of the New Jersey Conscientious Employee Protection Act. The case, Severine v. Doak Dermatologics, et al., was tried in New Jersey Superior Court – Essex County.

The case was brought by a former sales representative of Nycomed's predecessor, Bradley Pharmaceuticals and Bradley subsidiary Doak Dermatologics. Plaintiff claimed retaliation and retaliatory discharge arising from his complaints about anti-Semitic and racist comments allegedly made to him by a co-worker, and the co-worker's alleged discarding of a competitor's drug samples in violation of FDA regulations. Prior to trial, the court had granted partial summary judgment to Nycomed dismissing several of the plaintiff's claims including all of the plaintiff's claims against the co-worker, and granted summary judgment to Nycomed on its counterclaims for fraud, fraudulent misrepresentation, and negligent misrepresentation arising from plaintiff's false statements on his resume and application.

The trial lasted six days and the jury returned its verdict for Nycomed in less than two hours.

The EBG team was led by attorneys Maxine Neuhauser and Denise Merna Dadika, and included attorneys Jennifer Barna and Maxiel L. Gomez and paralegal John Cullen, all of the Newark office.

EpsteinBeckerGreen Successfully Assists Client in $2.6 Billion Acquisition

EpsteinBeckerGreen attorneys successfully assisted their client, Dainippon Sumitomo Pharma Co., Ltd., in conducting health regulatory due diligence and negotiating a purchase agreement to be used in connection with the client's acquisition of Sepracor, a publicly-traded international pharmaceutical manufacturer.  The purchase was valued at approximately $2.6 billion. This deal enables Dainippon, a Japanese pharmaceutical manufacturer, to expand its products into the U.S. market. The deal closed on October 14, 2009.

The EBG team was co-led by attorneys Wendy C. Goldstein in the New York office and Robert D. Reif in the Washington, DC office, and included Amy Dow in the Chicago office, Daniel E. Gospin in the Newark office, and Leah R. Kendall, Benjamin S. Martin, Lee H. Rosebush, Joel C. Rush, Alaap B. Shah, and Constance A. Wilkinson in the Washington, DC office.

EpsteinBeckerGreen Closes Key Step in Complex Health-System Deal

On October 1, 2009, the University of Maryland Medical System (UMMS) and the Upper Chesapeake Health System (UCH) closed a key step in a complex, multi-phased deal, which is expected to result in a full merger by 2013. The transaction will infuse hundreds of millions of dollars into the community served by UCH, which expects significant growth due to the decision by the Base Realignment and Closure Commission to transfer thousands of jobs to Harford County, Maryland. The funds will be used to expand inpatient and ambulatory services and assist UCH in its physician recruitment efforts through UMMS' close relationship with the University of Maryland School of Medicine. For UMMS, the affiliation will help further its goal of creating a statewide network of care, already consisting of nine hospitals, that encompasses community-based health providers, tertiary health providers and cutting-edge medical research. The first step in the transaction occurred in June, when UMMS acquired a minority interest in the UCH system then held by St. Joseph Medical Center. EpsteinBeckerGreen, which has been transaction counsel to UMMS for over a decade, represented UMMS in the transaction.

The EpsteinBeckerGreen team was led by Dale C. Van Demark and included Joel C. Rush, Patricia M. Wagner and Jason B. Caron in the Washington, DC office.

EpsteinBeckerGreen Stops Union's Enforcement of Collective Bargaining Agreement

On August 11, 2009, EpsteinBeckerGreen won a substantial victory for its client, an alcoholic-beverage distributor. A collective bargaining agreement with a Teamsters local union said that the movement of freight to and from the distributor's warehouse would be performed by the distributor's union-represented drivers. The distributor later signed a distribution agreement whereby it became the exclusive distributor in Metropolitan New York for Diageo, a major a wine and spirits supplier of brands including Smirnoff Vodka, Cuervo Tequila, Captain Morgan Rum, Johnnie Walker, Goldschlager, Bailey's Irish Cream and Seagram's Canadian Whiskey. For six months, the distributor's drivers picked up the supplier's products. However, the supplier changed to a national "delivered pricing" plan that included delivery to the distributor's warehouse, and the distributor's drivers were no longer needed to pick up products covered by the plan.

The union filed a grievance against the distributor and took the matter to arbitration. The arbitrator ruled that the distributor violated the collective bargaining agreement by allowing employees other than its own to pick up the supplier's products. The distributor then filed an unfair labor practice charge against the union with the NLRB. The NLRB ruled that the union violated Section 8(e) of the National Labor Relations Act by seeking arbitration to enforce its collective bargaining agreement with the object of forcing the distributor to cease doing business with the supplier. The union appealed the NLRB's decision.

In Local 917, International Brotherhood of Teamsters v. National Labor Relations Board, the U.S. Court of Appeals for the Second Circuit ruled that the union engaged in unlawful activity by proceeding to arbitration to obtain the re-assignment of work that historically was done by employees it represented, but outside the distributor's control. The Court also ruled that the union's effort to enforce the collective bargaining agreement amounted to a secondary boycott in violation of Section 8(e). The Court noted that the union's position was "anti-competitive" because it would have either precluded the distributor from doing business with the supplier entirely or obligated the distributor to breach its contract with the supplier.

The distributor was represented by EpsteinBeckerGreen attorneys Allen B. Roberts and Donald S. Krueger of the New York office.

EpsteinBeckerGreen Negotiates Landmark Settlement for Westchester County

EpsteinBeckerGreen attorneys successfully negotiated a landmark settlement agreement for their client, Westchester County, in an action that was started in 2006 by the Anti-Discrimination Center of Metro New York, Inc. ("ADC"). The ADC sued the county under the federal False Claims Act ("FCA"), claiming that the county hadn't properly desegregated, or analyzed the impact of race on housing in, various Westchester neighborhoods despite taking money for federal housing aid.

EpsteinBeckerGreen, which has served for many years as Westchester County's outside counsel with respect to complex litigation, civil rights, and employment cases, was asked to represent the county in this large-scale FCA litigation. As part of the settlement, the county agreed to spend $60 million to build or acquire affordable housing in mostly white communities and to market that housing to minority tenants and buyers. The county has seven years to complete the building and/or acquisition of the housing. The settlement agreement has been submitted to the county's Board of Legislators for ratification.

EpsteinBeckerGreen attorney Stuart Gerson, a leading litigator and national authority on the FCA, served as lead counsel for Westchester County in the settlement. His team included attorneys Matthew T. Miklave, Michael A. Kalish, and Carrie Corcoran.

EpsteinBeckerGreen Convinces Circuit Court to Affirm Dismissal of Medicare Secondary Payer Act Action

On July 29, 2009, EpsteinBeckerGreen attorneys won a significant victory in the defense of its client, Empire Blue Cross and Blue Shield. In Woods v. Empire Health Choice, Inc., the plaintiff claimed that under the Medicare Secondary Payer Act ("MSP"), the defendant was primarily liable for the payment to health care providers for covered services received by individuals with health care coverage from both Medicare and the defendant, but that the defendant allegedly paid for such services with Medicare funds. The plaintiff did not allege that any of the claims at issue were for services he had received; rather, they involved services provided to others. It was the plaintiff's contention that the MSP is a qui tam statute. (In an action brought under a qui tam statute, the plaintiff, called a "relator," does not have to be personally harmed by the allegedly unlawful acts of the defendant or have had any dealings whatsoever with the defendant. The relator brings an action on behalf of the U.S. Government, which is the actual injured party.) Plaintiff's argument relied heavily on two prior Second Circuit decisions that had analogized the MSP to a qui tam statute. Because of those decisions, the law in the Second Circuit seemed to suggest that the MSP might be a qui tam statute.

The U.S. Court of Appeals for the Second Circuit agreed with EpsteinBeckerGreen's arguments that the MSP: (i) is not a qui tam statute, and (ii) only provides individuals with a traditional private right of action that requires a plaintiff to have individual standing based on a personal injury caused by an alleged violation of the MSP. The ruling that the MSP is not a qui tam statute is now the controlling law in the Second Circuit.

The decision in this case is favorable for payors and providers who bill, or are reimbursed by, Medicare for services that arguably are covered by primary payors. The Court's ruling clearly bars individuals who have not been injured from trolling for alleged violations of the MSP and bringing burdensome and costly suits against payors, providers, and Medicare intermediaries. It is notable that the Court could have side-stepped the qui tam issue and simply affirmed the dismissal of the plaintiff's case on procedural grounds.

The EpsteinBeckerGreen team representing Empire Blue Cross and Blue Shield consisted of Washington, DC attorney Daly D.E. Temchine and New York attorney Aime Dempsey.

EpsteinBeckerGreen Obtains $1 Million Judgment for Client in Corporate Dispute

On July 15, 2009, EpsteinBeckerGreen succeeded in obtaining a judgment of more than $1 million for its client. The dispute concerned shareholders of a close corporation.

In 1985, EBG's client received from his brother a gift of stock representing a 70 percent interest in a "Subchapter-S" corporation that his brother utilized to own and manage New York City apartment buildings. Our client set aside the certificate for 20 years. In 1986, the NY Secretary of State dissolved the corporation for failure to pay franchise taxes. The brother waited 90 days and incorporated another entity with the same name as the dissolved corporation and continued business as usual, including buying a building in Harlem in 1987 and selling the other properties in 1988. EBG's client was unaware of these activities. The brother died in 2001, and his wife sold the Harlem building in 2005 for a $1.2 million profit.

In 2006, our client found the stock certificate and asked the wife for his share of the $1.2 million profit. She refused to pay, arguing that our client owned stock only in the first corporation, but the building was bought and sold by the second corporation. Our client sued.

After a bench trial, the New York Supreme Court in Manhattan granted EBG's client 70 percent of the profit from the sale, ruling that the second corporation was a mere continuation of the first. More importantly, the judge agreed with EpsteinBeckerGreen's position that to allow the wife to prevail would encourage shareholders to avoid paying franchise taxes and, when faced with dissolution, merely reincorporate for a few dollars. Such schemes violate public policy.

This case was challenging because the brother had been dead for eight years, our client had no knowledge of the brother's business (neither did the wife), corporate records were non-existent, the wife's son had destroyed all other records of the real estate sale at issue, and most of the corporate activities occurred 20 years ago. Fortunately, EpsteinBeckerGreen found and deposed the lawyer who represented the brother in the 1980s. The lawyer testified that there was no need to transfer title of the first corporation's property to the second corporation in 1986 since "they were the same corporation" and that it was the brother's practice not to pay franchise taxes when it was just as easy and cheaper to reincorporate.

The EpsteinBeckerGreen team representing the client included New York Litigation attorney Kenneth J. Kelly.

EpsteinBeckerGreen Obtains Dismissal of Letter of Credit Action

On July 2, 2009, EpsteinBeckerGreen obtained a dismissal of a suit for $6 million against its client, China Construction Bank Corporation ("CCBC"), one of the largest banks in the People's Republic of China, arising from a letter of credit issued by CCBC. The suit, which was brought in New York Supreme Court, raised novel issues relating to the liabilities of parties to relatively rare "transfer" of letter of credit transactions.

A letter of credit (or "L/C") is used as a financing tool in international trade when an exporter does not want to rely on the creditworthiness of an importer. The L/C is a promise by the importer's bank (the "issuer") that it will pay the exporter of merchandise (the "beneficiary") the price of the merchandise on the receipt of export documents of title showing merely that the goods have been shipped, whether or not the underlying sales actually transaction is performed. Sometimes the exporter's bank will, with the issuer's express permission, "transfer" the L/C to "secondary beneficiaries," who are usually the exporter's subcontractors, to pay them for their part of the manufacture of the merchandise. The issuer will ultimately be responsible for the entire L/C payment if all parties to the transaction follow the international rules governing L/C transactions.

The transaction here involved a shipload of iron ore to be exported from Venezuela to China and a L/C that CCBC had designed as "transferable." The beneficiary of CCBC's L/C directed its New York bank ("Bank M") to transfer $6 million of the $12 million L/C to the steamship owner to pay for the shipping costs. In order to be paid the $6 million, all the steamship owner had to do was fax a "certificate of readiness" to Bank M stating that the vessel had arrived in port to pick up the ore. The owner did just that.

Unfortunately, the exporter seems to have gone out of business and breached the sales contract; there was no ore to be loaded. Nevertheless, under L/C law, because the "certificate of readiness" was all Bank M had specified was needed to obtain payment, Bank M had to pay $6 million unless there were flaws in the documents presented to it. Bank M refused to pay on the transferred L/C. The steamship owner sued CCBC and Bank M for failing to honor the L/C, asserting that because Bank M was CCBC's agent when it transferred the L/C and the owner had established the requirement of the certificate of readiness and presented a proper certificate, CCBC was therefore liable for $6 million.

In a lengthy opinion that explained, in detail for the first time in New York, the rights and obligations of the diverse various parties to "transferred" letters of credit, the court accepted EBG's arguments and granted CCBC's motion for summary judgment dismissing the steamship owner's claim against CCBC, while holding Bank M liable for $6 million. Applying the L/C rules of the International Chamber of Commerce, the court held that Bank M, as the transferring bank, could not bind CCBC by the transfer even though CCBC's L/C expressly permitted transfers. This is because the terms of the transferred L/C varied from the original L/C and Bank M exceeded its authority in transferring the L/C so as to require a certificate of readiness. AP Marine Ltd. v. China Construction Bank Corp., N.Y. Co. Index No 602-517/08.

Kenneth J. Kelly, Victoria Sloan and Jian Hang represented CCBC in the litigation.

EpsteinBeckerGreen Closes Sale of 14 Nursing Homes

On June 30, 2009, EpsteinBeckerGreen closed the sale of 14 nursing homes by Arkansas-based Golden Living to Capital SeniorCare Ventures, LLC. The Heritage Company affiliates will be the new operators for each facility. Capital SeniorCare Ventures is an affiliate of Baltimore, Maryland-based Capital Funding Group, Inc. The purchase price was not disclosed.

Golden Living was represented by EpsteinBeckerGreen attorneys Robert D. Reif and Joel C. Rush in the Washington, DC office, and by Alan B. Wynne and Jenny A. Lipana in the Atlanta office.

EpsteinBeckerGreen Closes Asset Acquisition

EpsteinBeckerGreen attorneys represented eHealth Partners, LLC, in its acquisition on June 26, 2009 of certain technology/IP and other assets from California-based eHealth Technology, Inc. The purchase price was not disclosed.

eHealth Partners is a fast-growing health care information technology services company focused on serving payers nationwide.

EpsteinBeckerGreen attorneys representing eHealth Partners, LLC included Robert D. Reif in the Washington, DC office, Scott M. Drago and Hylan Fenster in the New York office, and William H. Venema in the Houston office.

EpsteinBeckerGreen Is Victorious in Major Environmental Dispute

On June 22, 2009, after an six-week bench trial in the U.S. District Court for the District of New Jersey, EpsteinBeckerGreen won a resounding victory for its client, Reichhold Inc. This case addressed claims relating to the cleanup of a contaminated chemical plant site formerly owned by Reichhold, which is located in Carteret, New Jersey. The case was brought pursuant to the federal CERCLA and New Jersey Spill Act statutes, as well as a 1994 settlement agreement between the parties.

Defendant United States Metals Refining Co. ("USMRC"), which owned the site prior to Reichhold, had argued that the settlement agreement prohibited Reichhold from bringing the claims in the instant lawsuit. The Court rejected USMRC's argument and held that, because virtually all of Reichhold's claims constituted "New Environmental Obligations" under the settlement agreement, they were actionable. The Court also dismissed every defense to liability raised by the defendant, including the defense that Reichhold's claims were time-barred.

In its Final Judgment, the Court awarded Reichhold $1,209,719 for investigation and cleanup costs that Reichhold had incurred while addressing metals contamination caused by USMRC's industrial operations. The Court also entered a declaratory judgment requiring USMRC to pay certain of Reichhold's future cleanup costs.

Reichhold's success at trial was attributable, in part, to its being able to discredit the expert testimony of USMRC's experts. In conjunction with an aerial photogrammetrist, USMRC's environmental engineering expert used historical aerial photographs of the site taken over a 60-year period to develop computer-generated surface contour maps that purported to depict Reichhold's excavation and fill activities at the site over time. Because of these topographical maps, USMRC's experts argued that Reichhold had caused extensive metals contamination at the site in the 1960's and 1970's by using contaminated fill in low lying areas of the property. On the basis of the cross-examination of defendants' experts by EpsteinBeckerGreen attorneys William A. Ruskin and Sheila A. Woolson, the Court rejected the experts' testimony and held that the conclusions based on the photogrammetry performed were unconvincing. Consequently, the Court placed no reliance on the cut and fill evidence presented. In contrast, the Court accepted the testimony of Reichhold's witnesses that Reichhold had not disposed of any metals containing contamination at the site.

In addition to William A. Ruskin and Sheila A. Woolson, the EpsteinBeckerGreen litigation team included Victoria M. Sloan.

EpsteinBeckerGreen Obtains Major Victory in ADA Accessibility Lawsuit Involving More than 2,800 Hotels Nationwide

On March 25, 2009, EpsteinBeckerGreen obtained a very significant ruling from the U.S. District Court for the District of Columbia for one of the leading hotel companies in the world. Two prominent disability advocacy groups and three individual plaintiffs filed a lawsuit claiming that more than 2,800 hotels operating under the company's brands violated the public accommodations accessibility requirements of the Americans with Disabilities Act ("ADA"). The plaintiffs sought extensive and expensive retrofits to every hotel, as well as changes to the company's central reservations system. EpsteinBeckerGreen filed a motion to dismiss which resulted in the case being limited to only four out of the more than 2,800 hotels original targeted and a dismissal of the claim relating to the reservations system.

In dramatically limiting the case's scope, the court issued several important rulings. First, the court held that advocacy organizations do not have standing to bring lawsuits under Title III of the ADA for injuries that they suffered as a result of disability discrimination against others. Second, the court held that to have standing to bring suit on behalf of members, the advocacy organizations must -- at the outset of the case -- identify: the members; which establishments they visited; what accessibility barriers they encountered; and whether they would return to the establishment were it not for the accessibility barriers. Third, the court held that the organizations' standing to bring the suit on behalf of their members was limited to the scope of the members' standing. Fourth, the court held that the members only had standing to sue for hotels for which they had actual knowledge of accessibility barriers absent a corporate-wide common design and for which they claimed a specific and imminent desire to return. These legal principles are not only relevant to nationwide ADA Title III cases against hospitality companies, but also to such cases brought against retailers, restaurants, and other businesses that have multiple locations. The hotel company was represented by Washington, D.C. attorney Frank C. Morris, Jr., Director of the Firm's Disability Practice Group.

EBGWH Attorneys Obtain a Defense Verdict in Retail Race Discrimination and Defamation Suit

On March 9, 2009, Epstein Becker Green Wickliff & Hall attorneys obtained a defense verdict in favor of their retail jewelry store client. In Singleton v. Ben Bridge Jeweler, Inc., Plaintiff, an African American male, sued Ben Bridge in a federal court in Houston, alleging that he was denied an opportunity to purchase a $5,000 Rolex watch because of his race, in violation of 42 U.S.C. §§ 1981 and 1982. Plaintiff also alleged defamation concerning statements made by a sales associate.

Plaintiff presented evidence at trial that, on March 18, 2007, he and his girlfriend visited a Ben Bridge store to buy a Rolex watch. A sales associate who assisted Plaintiff told him she needed to obtain the key to the case that contained the Rolex watch. The sales associate, in fact, had the key on her person, but wanted the assistance of another sales associate. When the second sales associate arrived, Plaintiff and his girlfriend testified that the sales associate stated "Rolex! Where did you get the money?!" Plaintiff also alleged the sales associate used racial language towards him and then escorted Plaintiff and his girlfriend out of the store. The sales associates denied Plaintiff's version of events, and the store defended its actions based on store protocol.

The Court dismissed Plaintiff's defamation claim because Plaintiff failed to plead and prove special damages. With respect to the claim of retail race discrimination, the jury found in favor of the Ben Bridge, concluding that Plaintiff did not intend to purchase a Rolex watch - an essential element of Plaintiff's §§ 1981 and 1982 claims.

It should be noted that Plaintiff utilized two Caucasian testers to prove he was treated less favorably. These testers testified during discovery that they were shown more expensive watches by one sales associate without the assistance of another sales associate. Ben Bridge was successful in excluding the testimony of these testers on the ground that they were not similarly-situated to Plaintiff.

Ben Bridge was represented by attorneys Charles H. Wilson and Greta Ravitsky of the Houston office.

EpsteinBeckerGreen's Efforts Help Manufacturer Achieve Significant Cost Savings

EpsteinBeckerGreen achieved a big victory for its client-manufacturer, when the National Labor Relations Board (NLRB) ruled in the manufacturer's favor regarding the declaration of impasse in collective bargaining negotiations with a Teamsters Union in Philadelphia.

The manufacturer began negotiating the terms of a new collective bargaining agreement in September 2007. After negotiations broke down in July 2008, the manufacturer retained EpsteinBeckerGreen's services with the goal of achieving significant cost savings. Over the next six months, it became increasingly apparent that the manufacturer and Union possessed considerable philosophical differences on issues such as wages, health insurance, and successorship principles. Consequently, in December 2008, the manufacturer declared an impasse and implemented the terms from its last offer.

The Union responded with charges that the impasse was invalid, and that the manufacturer was negotiating in bad faith. On March 2, 2009, the NLRB declared that the Union's charges lacked merit. Under the terms of the last offer, under which the manufacturer can now continue to operate, the manufacturer will save approximately $250,000 per year in health insurance costs. Additionally, wage increases will be tied to productivity as opposed to being fixed regardless of performance. These savings will enable the manufacturer to maintain a competitive position in the marketplace during these difficult economic times.

The EpsteinBeckerGreen team representing the manufacturer included Washington, DC Labor and Employment and Litigation attorneys Jay P. Krupin and Paul Rosenberg.

EpsteinBeckerGreen Succeeds in Appeal of Contract Case

EpsteinBeckerGreen successfully represented Aramarine Brokerage, Inc., a wholesale insurance broker, for the appeal of a trial court's judgment that dismissed Aramarine's complaint and awarded more than $1.3 million on the insurer's counterclaim in a breach of contract case. Aramarine was represented by another law firm at the trial court level. On January 23, 2009, the U.S. Court of Appeals for the Second Circuit held in Aramarine Brokerage, Inc. v. OneBeacon Insurance Co. that: (i) the trial court applied the wrong law; and (ii) under the applicable Pennsylvania law, although Aramarine's oral agreement was not performable within one year, the agreement did not need to be set forth in a written and signed document as is required in New York. The Court of Appeals reinstated the complaint, vacated the judgment for damages, and remanded the case for trial.

The EpsteinBeckerGreen team representing Aramarine on the appeal included New York Litigation attorneys Kenneth J. Kelly and Jennifer M. Horowitz.

EpsteinBeckerGreen Closes $10 Million Sale of Dental Managed Care Companies

On December 31, 2008, EpsteinBeckerGreen attorneys successfully closed the sale of their clients Dominion Dental USA, Inc. and its subsidiaries ("Dominion"), which operate dental managed care companies, to Capitol Blue Cross, a leading health insurer in Central Pennsylvania and the Lehigh Valley. Dominion offers dental benefit plans in Delaware, Maryland, Pennsylvania, Virginia, and Washington, DC. The transaction, valued at $10 million, will add approximately 400,000 new members to the Capital BlueCross dental plan.

The EBG team representing Dominion included Washington, DC Health Care and Life Sciences and Business Law attorneys Robert Reif and Joel Rush, and New York Health Care and Life Sciences and Business Law attorney Scott M. Drago.

Case Settled Favorably After Class Certification Denied

EpsteinBeckerGreen's Labor and Employment attorneys secured a significant victory in a wage hour collective and class action, when they successfully opposed class certification at an early stage of litigation. The Complaint, filed in July 2008 in the US District Court for the Southern District of New York, alleged a collective action for overtime violations of the Fair Labor Standards Act ("FLSA") and a parallel Rule 23 class action for alleged violations of New York State labor law.

However, a close examination of the facts revealed the need for individual analysis of each claim, thus, defeating the utility of class certification. Further, the individual plaintiff's theory of recovery and factual overgeneralizations inflated the claim by 100 percent. Once the case was limited to a single plaintiff and the claim was reduced to a monetary amount in line with reasonable calculations of potential exposure, the lawsuit was promptly settled on favorable terms. The client successfully concluded this potentially complex litigation before discovery and motion practice in a cost-effective manner.

EpsteinBeckerGreen's Labor and Employment team was led by Senior Trial Counsel Douglas Weiner.

EpsteinBeckerGreen Succeeds in Limiting Discovery to Collective Action's Opt-in Plaintiffs

In a recent wage hour collective and class action, EpsteinBeckerGreen's Labor and Employment attorneys successfully limited discovery to the opt-in plaintiffs identified by their Court filings. The Complaint was filed in June 2008 in the US District Court for the Southern District of New York and alleged misclassification of independent contractors in a collective action for overtime violations of the Fair Labor Standards Act ("FLSA") and a parallel Rule 23 class action for alleged violations of New York State labor law. Upon being served with the Complaint, EpsteinBeckerGreen's client needed sufficient time to identify, locate and analyze vast sets of records to evaluate potential exposure and defend the lawsuit.

At the initial scheduling conference, plaintiffs' attorneys advised the judge that they intended to file a motion for class certification as early in the litigation as possible. EpsteinBeckerGreen attorneys opposed the motion as premature, and sought an opportunity to assess the opt-in plaintiffs' claims with a view toward engaging in substantive settlement negotiations on the basis of the facts and claims of the identified plaintiffs. Persuaded by the possibility of settlement, the Court did not allow the plaintiffs' class certification motion to proceed. If the case could be limited to the opt-in plaintiffs, and those claims reduced to a monetary amount in line with reasonable calculations of potential exposure, the lawsuit could be settled on favorable terms. By setting the sequence of proceedings at the Court's initial schedule, EpsteinBeckerGreen's client successfully gained time to engage in settlement negotiations before costly motion practice delayed the possible resolution of the matter.

EpsteinBeckerGreen's Labor and Employment team was led by Senior Trial Counsel Douglas Weiner.

Jury Rules for EpsteinBeckerGreen in Defamation Trial

EpsteinBeckerGreen attorneys obtained a jury verdict on November 19, 2008, dismissing a defamation action brought by a former executive against one of New York City's largest hospitals. The action was in federal court in Central Islip, New York.

The plaintiff had been the hospital's Executive Vice President for finance, billing and collections, information technology and strategic planning. He had left the hospital's employ in 2000. Thereafter, the New York Attorney General ("AG") investigated billing for Medicaid patients for services rendered at part-time clinics operated by the hospital and alleged that the hospital fraudulently overbilled the State. The overbilling allegations were settled for more than $75 million in 2005.

As part of the settlement, the AG filed a civil complaint alleging that the hospital had engaged in Medicaid fraud and that certain named individuals, including the plaintiff, were principals in perpetrating the fraud. In addition, the AG required that the hospital provide the AG with a written apology for "misconduct" of unnamed "former executives." The AG announced the settlement in a press release on his office's Web Site, which quoted the apology and linked to the complaint—which, unlike the apology, identified plaintiff by name.

The next day, the AG's press release was reported in the press and plaintiff's name was mentioned in connection with the apology. The plaintiff's then-current employer, another hospital, fired him on the spot, stating publicly that he was fired because of the AG's allegations.

EpsteinBeckerGreen's client was then sued for defamation as a result of the AG's public dissemination of its apology. We defended on the ground that the re-publication of the alleged defamation by the AG did not constitute publication by the hospital. Plaintiff argued that because some of the language of the apology had been drafted by the hospital during negotiations, the publication should be considered at least a joint publication. The jury decided, however, that the hospital's involvement in the drafting process did not constitute a publication by the hospital, and as a result, the plaintiff did not prove a viable defamation claim.

The EpsteinBeckerGreen team included New York attorneys Kenneth J. Kelly, A. Jonathan Trafimow, and Tracey Cullen.

Federal Court Stops HHS from Applying "Least Costly Alternative Policy" to Covered Pharmaceuticals

On October 16, 2008, EpsteinBeckerGreen won a significant case for its plaintiff-clients, a Medicare beneficiary and the manufacturer of an inhalation drug. In Hays v. Leavitt, the U.S. District Court for the District of Columbia ruled in favor of the plaintiffs and permanently enjoined the Secretary of Health and Human Service ("Secretary") from implementing coverage policies that would have based Medicare reimbursement for a covered inhalation drug on the "least costly alternative."

The plaintiffs had challenged four local coverage determinations that set the Medicare reimbursement rate based on the "least costly alternative" policy in the Medicare Program Integrity Manual instead of using the formula in 42 U.S.C. § 1395w-3a, which directs the Secretary to set the reimbursement for such drugs at 106% of the average sales price for that drug as reported quarterly to the Secretary.

The court rejected the Secretary's argument that the provision in 42 U.S.C. § 1395y(a) prohibiting payment for items and services that are "reasonable and necessary" also authorized him to make payment determinations. Instead, the court applied the standard taken from Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984) and concluded that Congress had expressly addressed both coverage and reimbursement for covered drugs in the statute, that the language of § 1395y(a) was limited to coverage and did not authorize the Secretary to determine reimbursement using a formula that deviated from the comprehensive language of § 1395w-3a. The court found that the phrase "reasonable and necessary" refers to items and services, and not to expenses for those items and services. In determining that the Secretary had exceeded his statutory authority, the court noted that "[i]f the Secretary had broad discretion to determine what expenses are reasonable and necessary under section 1395y(a), the Secretary may re-write these formulas to her liking whenever she believes they provide for an unreasonable or unnecessary expense simply by stating that any payment of expenses above her desired payment amount are barred as unreasonable or unnecessary under section 1395y(a)."

The EpsteinBeckerGreen team was composed of Washington, DC attorneys Stuart M. Gerson and Robert E. Wanerman, with assistance from Paul M. Campbell, and John F. Benevelli of EBG Advisors.

EpsteinBeckerGreen Obtains Dismissal of Putative Class Action

On October 6, 2008, EpsteinBeckerGreen attorneys were successful in obtaining a dismissal of a putative class action against their clients, major health insurance companies. The suit was filed in the Southern District of New York against many major health care payors and their respective subrogation and collection service vendors.

Early on, EpsteinBeckerGreen attorneys recognized that their clients were on the path of becoming needlessly embroiled in the politics, maneuvering and complexities of a multi-defendant class action. Therefore, the attorneys made a bold proposal to their clients: File a Motion to Dismiss immediately and before any conferences with the Court, the plaintiffs, and counsel for the co-defendants took place. The clients expressed appropriate concerns about whether the Court might consider the motion to be premature, and the potential risks of proceeding independently of the other defendants, but approved EpsteinBeckerGreen's proposal.

Three days before the first conference with the Court, EpsteinBeckerGreen attorneys filed a Motion to Dismiss with prejudice and also a served a Rule 11 Notice Letter on plaintiffs' counsels with the Motion. At the conference, plaintiffs' counsel consented to a dismissal with prejudice, and the Court granted the Motion to Dismiss. EpsteinBeckerGreen attorneys stayed in the courtroom out of caution, and persuaded the Court that no discovery should be directed to their clients. Thus, EpsteinBeckerGreen's clients successfully avoided the eventual blizzard of discovery that was served on the other defendants, and the vigorous debating and disagreeing among the counsel of those defendants regarding strategy and tactics.

The EpsteinBeckerGreen Litigation team that represented the major health insurance company clients was composed of Washington, DC attorneys Daly D.E. Temchine and Steven E. Skwara, Chicago attorney Corey M. Perman, and New York attorney Michael Liberman.

Federal Appeals Court Affirms Use of Tip Credit by Skycap Employer

In September 2008, EpsteinBeckerGreen Labor and Employment attorneys won a significant victory for their client, an airline services provider ("ASP employer"), when the U.S. Court of Appeals for the Eleventh Circuit affirmed a Miami federal court's ruling rejecting the claims advanced by skycaps. The case was a Fair Labor Standards Act ("FLSA") collective action advanced by 53 skycaps who worked at the Miami International Airport. The skycaps alleged that the ASP employer violated federal and state minimum wage law by improperly claiming a "tip credit." The tip credit is the mechanism which permits employers to pay tipped employees a reduced wage, and use employee tips to satisfy the minimum wage requirements. The skycaps made three attacks on the ASP employer's use of the tip credit: (1) skycaps were provided inadequate notice of the tip credit; (2) skycaps were deployed to perform "non-tipped" work while receiving only a tipped wage; and (3) by requiring skycaps to collect a $2 per bag service charge, the ASP employer effectively diverted tips from the skycaps.

The district court rejected the skycaps' federal claims. The court reasoned that the tip credit is not a statutory exemption, but rather, arises from the statutory definition of the minimum wage. Exemptions are strictly construed against the ASP employer, whereas definitions that limit the application of the FLSA's provisions are construed according to their plain meaning. No court had previously ruled on that issue. The court was persuaded that oral notice to an employee that he would be paid $2.13 plus tips, combined with a prominently displayed FLSA poster which addressed the tip credit, constituted adequate notice of the tip credit. Further, the court ruled that the ASP employer was not required to scrutinize every task performed by tipped employees and to separate tipped and non-tipped job duties. Finally, the court rejected the skycaps' third attack concerning the $2 per bag service charge. The court concluded that the baggage charge was not a tip because it was not discretionary. The Eleventh Circuit affirmed the district court's ruling.

The L&E team that represented the ASP employer was composed of Miami attorneys Michael W. Casey, III and Mark J. Beutler.

Federal Court Grants EpsteinBeckerGreen's Motion to Dismiss RICO Suit

On September 2, 2008, EpsteinBeckerGreen attorneys secured an important victory for their clients, Northern Leasing Systems and several of its officers, when a New York federal court granted their motion to dismiss a suit alleging violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). Northern finances leases of credit card terminals to retail businesses. In Serin v. Northern Leasing Systems, the plaintiffs defaulted on their respective lease agreements and were sued by Northern in state court. Plaintiffs alleged in this federal action that these collection suits were groundless and constituted criminal extortion, which is a "pattern of racketeering activity" under RICO.

The U.S. District Court held that, even assuming the plaintiffs' claims that the collection suits were groundless (which Northern denied), bringing or even threatening a lawsuit was not the use of an "unlawful means" to obtain an unlawful end, which is the essence of criminal extortion. The Court further rejected the argument that a claimed abuse of judicial process, standing alone, is not extortion. The Court also dismissed plaintiffs' claim that Northern's alleged deceptive practices in entering into leases constituted a violation of New York's consumer fraud statute, General Business Law §349, since the plaintiffs were admittedly small businesses and not consumers.

The EBG Litigation team that represented Northern was composed of New York shareholder Kenneth J. Kelly and associate Aisha Joseph.

EpsteinBeckerGreen Successfully Defends Medical Center in Federal False Claims Act Suit

On August 29, 2008, Epstein Becker & Green attorneys secured an important victory for their client, a major New York academic medical center. In the case brought by a qui tam relator after the U.S. Government declined to proceed against the client, the relator alleged that the medical center's billing practices violated the Federal False Claims Act. After a 17 day trial, the jury returned a verdict dismissing all of the relator's claims.

This was a closely watched litigation, especially in light of the Supreme Court's Allison Engine decision earlier in the year. This success highlights EBG attorneys' ability to defend health care clients who become enmeshed in whistleblower litigation brought by or on behalf of the U.S. Government.

The EBG team that represented the medical center was led by Stuart M. Gerson and James S. Frank. They were supported by Juliana S. Gonen and Tina Rao.

EpsteinBeckerGreen Wins Significant Trial Regarding Breach of Employment Agreement and Fraudulent Misrepresentation

On August 18, 2008, an Austin, Texas state court jury returned a complete trial defense verdict on behalf of AXA Equitable Life Insurance Company and other Defendants, and also awarded the Defendants $245,000.00 on their counterclaim against the Plaintiff, C. Daniel Roberts as Chapter 7 Trustee of the bankruptcy estate of former employee L. Kent Abney. The Plaintiff alleged the AXA Defendants breached an employment agreement it had with Abney to promote him to a senior management position in New York, and that misrepresentations were made to him that caused Abney to relinquish his former Austin branch manager position for the promotion to New York. The 11-day trial ended after a three-hour jury deliberation in favor of the Defendants. One of the key aspects of the case was a set of contemporaneous emails/notes made by Plaintiff that he could not plausibly reconcile with his deposition and trial testimony regarding certain misrepresentations he alleged were made by the Defendants. The importance of having contemporaneous documents to support your defense became apparent throughout the trial.

The Defendants were represented by EBG attorneys David Barron and Martin Wickliff of the Houston office.

EpsteinBeckerGreen Wins Discrimination Suit Dismissal

On August 6, 2008, EpsteinBeckerGreen won a significant victory for Verizon New York Inc. ("Verizon"), when following a three-day trial, the New York State Division of Human Rights ("SDHR") dismissed the lawsuit on all grounds. In Levine v. Verizon New York, Inc., the plaintiff alleged discrimination on the basis of race, color and gender, as well as retaliation for exercising rights protected by the New York State Human Rights Law. The plaintiff, a former Central Office Technician, worked for Verizon or its predecessors from about 1989 until her termination in April 2006 following a workplace altercation with her supervisors and an investigation into her absence without approval.

Following a June 29, 2007 probable cause determination, trial was held over three days in February and March 2008. At the conclusion of the third day of trial, an Administrative Law Judge ("ALJ") closed the record over Verizon's objection as it had not been permitted to call to the stand three additional and had not completed the cross-examination of the plaintiff due to SDHR time limitations. On May 6, 2008, the ALJ issued a decision (amended two days later) recommending that the SDHR dismiss the complaint in its entirety, as the Plaintiff failed to offer sufficient evidence to support her claims. Neither party filed objections to the decision. The SDHR adopted the ALJ's recommendation and dismissed the case on all grounds. The Plaintiff has 60 days to appeal.

Verizon was represented by EBG Labor and Employment attorney Matthew Miklave, a Member of the Firm in both the New York and Stamford offices.

EpsteinBeckerGreen Attorneys Obtain Voluntary Dismissal of Collective Action Lawsuit

EBG Labor and Employment attorneys scored a big victory when they obtained a voluntary dismissal of a collective action lawsuit brought against their client, a catering company. In June 2008, certain employees of the caterer filed a class action FLSA lawsuit in the U.S. District Court, Southern District of New York. The lawsuit alleged wage and hour overtime violations by the caterer. The employees claimed unpaid overtime, plus a "20% service charge" pursuant to World Yacht, a recent state court decision interpreting a New York law. The FLSA claim was the basis of federal jurisdiction. However, when the employer promptly paid the small amount of overtime wages due, there was no continuing basis for federal jurisdiction. Prior to even filing an Answer, on July 30, 2008, EBG attorneys persuaded the employees' attorneys that the lawsuit had no merit. The employees' attorneys then agreed to voluntarily dismiss the lawsuit before their first court appearance.

The L&E team representing the caterer was led by Senior Counsel Douglas Weiner.

EpsteinBeckerGreen Closes Sale of Pennsylvania Nursing Homes

EpsteinBeckerGreen successfully closed an asset sale for its client, the owner of nursing homes in Pennsylvania. In the transaction, the client sold certain nursing home assets to a new operator and landlord.

The EBG team representing the Pennsylvania nursing home owner included Washington, DC Health Care and Life Sciences and Business Law attorneys Robert Reif, Joel Rush and Rachael Shenkman and Atlanta Real Estate attorney Alan Wynne.

EpsteinBeckerGreen Attorneys Win Dismissal of Union's Representation Petition

EpsteinBeckerGreen Labor and Employment attorneys won a significant victory for their client, an airline services provider ("ASP") employer, when the National Mediation Board ("NMB") dismissed a representation petition filed by the Transportation Workers Union. The union had sought to represent the ASP's skycaps stationed at Miami International Airport. The union originally filed its petition with the National Labor Relations Board ("NLRB"), but the ASP employer succeeded in having the case transferred to the NMB because EBG attorneys argued that the skycaps were subject to the Railway Labor Act.

The advantage of being before the NMB was that bargaining units are "system wide" and thus would include more employee classifications and all seven airports where the ASP had passenger service operations. By moving the jurisdiction from the NLRB to the NMB, the unit sought to be organized was much larger (1,500 employees as opposed to 200). The union argued that employees stationed at the other airports should be excluded from the proposed bargaining unit because they were employed not by the ASP, but by a related company. The NMB rejected that argument, and ruled to include in the proposed bargaining unit passenger services employees at all seven airports. The consequence of this ruling was that the union failed to demonstrate the required union support for the much larger unit.

The L&E team representing the ASP employer included Miami attorneys Michael W. Casey, III and Mark J. Beutler.

EpsteinBeckerGreen Helps Convince New York's Highest Court to Limit Whistleblower Class

On July 1, 2008, EpsteinBeckerGreen helped its hospital client convince New York's highest court to sharply limit the class of employees protected by New York's health care whistleblower law (Labor Law section 741). In the case of Reddington v. Staten Island University Hospital and North Shore Long Island Jewish Health System, the Director of the hospital's International Patient Program alleged that the hospital terminated her employment in retaliation for translating and relaying alleged complaints of certain international patients. The hospital asserted that, because the Director did not "perform health care services," she could not maintain her section 741 claim.

The New York Court of Appeals ruled in favor of the hospital, noting that the Director was not within the class of employees protected by Labor Law section 741. As a result of this decision, employees who work in the health care field who do not personally render medical treatment or use professional judgment must rely on a more stringent whistleblower statute, Labor Law section 740, which requires that an employee's belief of a violation prove correct, that the health and safety of the public at large be endangered, and that an employee bring his claim in court within one year of the alleged retaliatory action.

The EpsteinBeckerGreen team representing the hospital included New York Litigation attorney Kenneth J. Kelly.

EpsteinBeckerGreen Attorneys Succeed in Blocking Hospitals' Collection Actions

In June 2008, EpsteinBeckerGreen secured an important victory for a major California health plan, Kaiser Permanente, when the California Superior Court in Los Angeles granted an injunction prohibiting Prime Healthcare System, Inc. and its affiliated hospitals and collection agency from pursuing collection actions against Kaiser members. On May 1, 2008, Prime had sent over 3,700 letters to Kaiser members demanding payment and threatening collection action against the members. Kaiser obtained a temporary restraining order and later a preliminary injunction prohibiting Prime from pursuing Kaiser's members for the claims at issue. The Superior Court found, adopting the arguments and even some of the language from EBG's brief, that Prime's activities constituted sharp and fraudulent business practices in violation of California's prohibition against unfair competition. Prime later conceded that its efforts in sending thousands of collection notices to Kaiser's members on a single day were an attempt to leverage Prime's position in its other lawsuits against Kaiser and force Kaiser into settlement on terms that were less than favorable to Kaiser. EBG's immediate and effective response and successful outcome prevented Prime's efforts to bully Kaiser into an unfavorable settlement and served to protect Kaiser's members from Prime's actions.

The EBG team representing Kaiser was led by Los Angeles Litigation attorneys David Jacobs and Susan Graham and San Francisco Health Care and Life Sciences and Litigation attorneys William Helvestine and Andrew Hefty.

EpsteinBeckerGreen Attorneys Finalize $3 Million Stock Investment

EpsteinBeckerGreen attorneys helped their client, Radius Ventures, Inc., finalize a $3 million investment in preferred stock and warrants in Management Health Solutions, Inc.

The EBG team representing Radius Ventures, Inc. included Washington, DC Health Care and Life Sciences and Business Law attorneys Robert Reif and Joel Rush.

EBGWH Attorneys Persuade Arbitrator to Send Exclusion Clause Issue to Federal Court

On June 6, 2008, Epstein Becker Green Wickliff & Hall, P.C. ("EBGWH") attorneys in Houston obtained a highly favorable outcome from a labor arbitrator in a traditional union setting on behalf of the firm's client, a major oil and gas company. In January 2008, the oil and gas company instituted some controversial overtime guidelines at its refinery and chemical facilities nationwide in response to the BP Texas City Refinery explosion in March 2005 and subsequent government-sponsored reports citing excessive overtime hours and operator fatigue as potential causes of the explosion. The local union at the oil and gas company's Texas refinery submitted a grievance regarding the oil and gas company's implementation of the overtime guidelines. For strategic reasons, the oil and gas company did not want to have this issue resolved through arbitration.

EBGWH attorneys ultimately determined that the grievance filed by the union was not substantively arbitrable due to a clause in the Collective Bargaining Agreement that excluded proposals by the company related to health and safety issues from the typical CBA-mandated arbitration procedures. In a conference with the arbitrator selected to hear the case, EBGWH attorney A. Martin Wickliff, Jr. convinced the arbitrator that the issue of whether the oil and gas company's overtime guidelines fit within the health and safety exclusion clause was a question of substantive arbitrability, to be decided by a federal court, not the arbitrator. Wickliff also convinced the arbitrator that the union, not the oil and gas company, should file suit to determine whether the issue was subject to arbitration.

EpsteinBeckerGreen Closes Deal for Acquisition of Nursing Homes in Indiana

EpsteinBeckerGreen attorneys successfully closed a $15 million transaction for their client, Capital SeniorCare Ventures, an affiliate of Capital Funding Group, for the acquisition of four nursing homes in Indiana. The transaction had a number of challenges, particularly on the real estate side, including uncleared title issues.

The EBG team included Washington, DC Health Care and Life Sciences and Business Law attorneys Robert Reif and Joel Rush and Atlanta Real Estate attorney Alan Wynne.

EpsteinBeckerGreen West Coast Offices Team Up To Secure A Big Win For Blue Shield of California

On May 15, 2008, EpsteinBeckerGreen secured an important victory for a major California health plan, Blue Shield of California, when the California Superior Court in San Diego found a valid and enforceable long-term contract existed between Blue Shield and Plymouth Health Investments, the new owner of Alvarado Hospital Medical Center (a former Tenet hospital in San Diego). After Plymouth purchased the hospital, it took the position that Blue Shield's contract with the former owner had terminated upon the sale. Plymouth claimed it was entitled to full billed charges and tried to coerce a new contract at higher rates. The Superior Court's ruling allows Blue Shield's members to continue to obtain services at contracted rates from Alvarado Hospital Medical Center.

The EBG team representing Blue Shield of California was led by San Francisco Health Care and Life Sciences and Litigation attorney William A. Helvestine and Los Angeles Health Care and Life Sciences and Litigation attorney Damian Capozzola.

Louisiana Trial Court Affirms Denial of Class Certification in Louisiana Toxic Tort Action

In a sweeping decision issued on April 14, 2008, a trial judge in Louisiana affirmed a Special Master's recommendation to deny class certification for plaintiffs alleging that pipe-cleaning operations on a commercial real-estate owner's property caused radioactive material that resulted in serious personal injuries to homeowners. EpsteinBeckerGreen Litigation attorneys played a key role in obtaining the denial of class certification sought by plaintiffs in this Louisiana toxic tort action. The trial judge's decision went well beyond a discussion of the numerosity requirement of class certification, which was the Special Master's sole basis for recommending that no class be certified. Rather, the trial judge examined all of the class certification requirements and found that plaintiffs had failed to meet virtually all of them.

The EBG Litigation team representing the defendant property owner included New York attorney William A. Ruskin.

EpsteinBeckerGreen Wins Dismissal in Agricultural Chemical Litigation With Broad Application of 'Economic Loss' Rule

EpsteinBeckerGreen Litigation attorneys in New York prevailed in obtaining summary judgment on behalf of a manufacturer of agricultural chemical products by persuading the New York state court to adopt a broad application of the "economic loss rule" to bar a third-party claim that alleged that a herbicide applied to corn and alfalfa failed to provide appropriate weed control (herbicide non-performance).

In the case, a farmer alleged that an improper herbicide application by the herbicide applicator caused his reduced corn yield during the 2002 growing season. The herbicide applicator then launched a third-party action against EBG's client, the manufacturer of the herbicide products, with claims for indemnification, contribution, breach of contract, breach of warranty and strict products liability. The Cortland County Supreme Court dismissed the claims. Adopting EpsteinBeckerGreen's argument, the court held that the plaintiff's alleged damages, were "economic" losses that solely concerned a bargain struck between the two primary parties under a contract, so the third-party action was barred.

According to EBG Litigation attorney William Ruskin, counsel for the manufacturer, "To our knowledge, there are no prior reported cases in New York that have applied the economic loss rule to bar a claim for alleged herbicide non-performance under similar circumstances, which makes this case a significant precedent."

EpsteinBeckerGreen Wins Significant Victory in Protecting Employer's Confidentiality, Trade Secrets

On February 29, 2008, EpsteinBeckerGreen Labor and Employment attorneys won a significant victory for their client, a food service company. The Arizona Superior Court granted their motion for a temporary restraining order ("TRO") and granted their request for a third-party neutral computer expert to investigate the defendants' computer systems to determine the extent of the misappropriation and disclosure of trade secrets. This was a significant victory for our client because it ordered the defendants to cease using and disclosing highly confidential information that was being used to harm our client in the Arizona marketplace, and allowed extensive discovery of the defendants' post-employment activities with respect to our client's confidential and trade secret information.

The EBG L&E team that represented the food service company was composed of Washington, DC attorneys Kara M. Maciel and Mark M. Trapp.

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