By J. Clifton Smith
This summer, Missouri voters approved an amendment to the Missouri Constitution protecting electronic data from searches and seizure by law enforcement officers.
Article I, Section 15 of the Missouri Constitution closely resembles the Fourth Amendment to the Federal Constitution: both provide that the people shall be “secure in their persons, papers, homes and effects from unreasonable searches and seizures,” and that law enforcement must demonstrate probable cause before obtaining a search warrant. The recent amendment modifies Section 15 so that it now explicitly protects “electronic communications and data” and requires police to “describe the data or communication to be accessed as nearly as may be” when applying for a warrant.
Surprisingly, the amendment might have ripple effects far removed from searches conducted by law enforcement. Continue reading »
12/2/14 1:11 PM
Business Law, Digital Media, Litigation | Comment (0) |
Electronic Privacy Amendment May Have Broad Implications for Use of Digital Information
By David A. Zobel
The current unrest facing the St. Louis metropolitan region carries with it the elevated risk of damage and/or destruction of both real and personal property. While everyone intends and hopes their insurance policies cover all eventualities that may arise, the truth of the matter is that not all eventualities are covered by insurance.
Unfortunately, it is generally only after something truly unexpected happens that policies are reviewed and tested for actual coverage. At that moment, it may be too late to both prepare for the event and/or adjust coverage.
As a result, it may be wise now to pull out your current auto, homeowners, renters, commercial or other similar policies to review each policy’s specific language.
One of the coverage limitations to consider are so-called “force majeure” clauses. “Force majeure” is a contractual term that relieves parties from performing their contractual obligations when certain circumstances beyond their control arise, often making their performance under the contract impractical or impossible. Examples of these circumstances can include earthquakes, war, strikes, epidemics, acts of God, and riots. Continue reading »
11/21/14 3:07 PM
Business Law, Real Estate | Comment (0) |
Is Your Property Insured Against a Riot?
By Laura Gerdes Long
The Connecticut Supreme Court has now joined Missouri, West Virginia and North Carolina in rulings connecting HIPAA with negligence lawsuits by patients.
In a case of first impression in Connecticut, the state’s Supreme Court ruled that a patient can sue a medical office for HIPAA negligence if it violates the patient’s privacy when improperly releasing the medical records to a third party. There is no dispute that HIPAA does not create a private cause of action. Increasingly, however, HIPAA can provide the standard of care for a medical office in how it releases confidential medical records and can be found negligent if it releases such medical records contrary to the requirements of the HIPAA regulations. Continue reading »
11/14/14 2:24 PM
Healthcare | Comment (0) |
Another State Rules That Patients Can Sue For Negligence for Violating HIPAA Regulations
By Ruth Binger
Your company is an “A” player and it has done everything right in the U.S. in protecting its intellectual property (“IP”). You have not just relied upon a “smile.” You’ve invented a unique product called Superstar® widget and it is not yet offered by your competitors. Vast amount of resources have been poured into the development of the Superstar widget. Prior to introducing the Superstar widget, you used due diligence and used the IP Awareness Assessment Tool on the U.S. Patent and Trademark Office website to identify what IP you have, if it has value, and if it can be protected under U.S. law.
Upon identifying your IP, the company retained capable attorneys who were successful in obtaining U.S. trademark registrations on the corporate name, non-functional design, and logo so customers could more easily identify the Superstar widget and its association with the company. Superstar widget packaging correctly evidences all registered trademarks.
You made a wise expenditure on patents and the company has received patents on the Superstar widget process. Further, copyright registrations with the U.S. Copyright Office have been obtained on your website, web video, and associated software and you are giving notice to the world of your ownership by using the appropriate symbol of “©2012 Company.” Continue reading »
10/27/14 2:24 PM
Business Law, Intellectual Property, International, Manufacturing and Distribution | Comment (0) |
Protecting Your Intellectual Property in a Wild World
By Laura Gerdes Long
4.5M Records Stolen, HIPAA violation
In June 2014, hackers in China used high-end, sophisticated malware to launch criminal cyber-attacks to access patient information from a national hospital system. Community Health Systems, Inc. (“CHS”), operates 206 hospitals across the U.S. in 29 states, including four located in Missouri (Kennett, Kirksville, Moberly, and Poplar Bluff). The breached data is considered protected health information under the Health Insurance Portability and Accountability Act (“HIPAA”).
In a filing with the U.S. Securities and Exchange Commission, CHS said the attacker was an “Advanced Persistent Threat” group which bypassed CHS’ security measures, successfully copying and transferring certain data outside CHS. Although CHS has confirmed that this data did not include patient credit card, medical, or clinical information, the breach does include patient names, addresses, birth dates, telephone numbers and Social Security numbers. CHS has been working closely with federal law enforcement authorities in connection with their investigation and potential prosecution of those determined to be responsible for this attack.
Under various state and federal laws, CHS is obligated to notify affected patients. The Department of Health and Human Services provides a web page describing the breach notification requirements of covered entities to effected individuals, the Secretary of Health and Human Services, and, in certain circumstances, to the media. Continue reading »
08/19/14 8:29 AM
Healthcare, Litigation | Comments Off |
Hacked Hospital Network Includes Outstate Missouri Hospitals
By A. Thomas DeWoskin
You should read this article if –
- You expect to transfer funds to your descendants through an individual retirement account (IRA); or
- You have inherited an IRA from a relative.
The U.S. Supreme Court has ruled in Clark v. Rameker that the money in an inherited IRA does not qualify for the protection from creditors as provided in the Federal Bankruptcy Code.
The Court concluded that funds in an IRA which was inherited from someone else are not really retirement funds. It gave three reasons for this conclusion. The holder of an inherited IRA:
- Can never invest additional money into the account.
- Is required to withdraw money from the account, no matter how far away retirement may be.
- May withdraw the entire balance of the account at any time – and use it for any purpose – without penalty. Continue reading »
06/27/14 3:06 PM
Bankruptcy, Estate Planning | Comments Off |
Inherited IRAs – Once Protected – Now Possibly Fair Game for Creditors
By Misty A. Watson
Co-authored by Misty Watson and Samantha Maerz
If you directly inherited an IRA and are facing bankruptcy, these funds are no longer protected from creditors.
In Clark v. Rameker (In re Clark), No. 13-299, the U.S. Supreme Court unanimously ruled that inherited IRAs do not qualify under the “retirement funds” bankruptcy exemption. As a result, non-spouses inheriting an IRA may no longer protect the funds from creditors after filing bankruptcy and spouses have more incentive to “roll over” inherited IRA funds.
Before the Supreme Court decided Clark, there was a split between the 5th and 7th Circuit Courts of Appeals regarding exactly what the “retirement funds” bankruptcy exemption covered. In Chilton v. Moser, the 5th Circuit previously held that inherited IRAs were exempt from the bankruptcy estate because the “retirement funds” exemption never stated that the retirement funds had to be the debtor’s. In Clark v. Rameker, the 7th Circuit disagreed and held that inherited IRAs were not exempt because they were an “opportunity for current consumption, not a fund of retirement savings.” The disagreement stemmed from the interpretation of what “retirement funds” included. Continue reading »
06/23/14 2:38 PM
Bankruptcy, Estate Planning, Trusts | Comments Off |
Inherited IRAs Not Protected in Bankruptcy
By Misty A. Watson
When you need access to your health care power of attorney and living will, it is often stored in your safe deposit box or safe at home. Personally, I keep my power of attorney on a USB drive on my key chain. This has come in quite handy a few times.
Recently, an app was released called “My Health Care Wishes” at www.myhealthcarewishes.org. The Lite version, called the Personal Advance Directive Manager, allows individuals the ability to store and share their advance care directive plus one additional document with health care providers. Personal & Family Advance Directive Manager is a more robust pro version available for a small fee. It allows “unlimited storage of people profiles and documents.” Continue reading »
05/1/14 1:46 PM
Estate Planning, Special Needs | Comments Off |
My Health Care Wishes: New App
By J. Clifton Smith
If you’ve ever poked around on the terms and conditions pages of YouTube, Facebook, Twitter or any other website that hosts user-generated content, you may have seen the Digital Millennium Copyright Act (DMCA) mentioned somewhere among the sea of fine print. You may also have seen a notice similar to the following after running a Google search:
DMCA is the federal statute that sets the ground rules for companies who host video, images, sounds, text or other files uploaded by the company’s customers. One of the most well-known and impactful portions of DMCA is the Online Copyright Infringement Liability Limitation Act (OCILLA), enacted as Title II of DMCA. By following a set of rules and procedures specified in the statute, web hosts, social media sites and file sharing services can protect themselves from liability under the Copyright Act for infringing materials uploaded by users.
If you run an online business, it is essential for you to understand the DMCA takedown process and what you need to do to comply with it. Even if your company doesn’t generate revenue online, you may need to become familiar with this process if you discover an unauthorized copy of your intellectual property somewhere on the web, or if your company’s website is targeted with a takedown notice.
Before looking at the takedown procedure itself, it is important to understand that although DMCA gives copyright holders a method to effect the removal of infringing content, the statute actually limits plaintiffs’ ability to file copyright infringement lawsuits. Continue reading »
04/7/14 1:42 PM
Business Law, Digital Media, Intellectual Property | Comments Off |
Digital Millennium Copyright Act Takedown Procedure: An Overview
By Ruth Binger
New regulations require Missouri employers to respond timely to information requests regarding unemployment insurance compensation. The federal Trade Adjustment Assistance Extension Act (“TAAEA” or the “Act”) of 2011 requires, among other things, that states increase employers’ duties regarding unemployment compensation claims. Specifically, the Act provides that states must require employers to respond timely and adequately to Claim Notices, information requests from state agencies relating to unemployment benefit compensation claims. It also requires states to charge the unemployment accounts of employers that repeatedly fail to respond to Claim Notices for unemployment benefits paid to ineligible former employees.
In Missouri, an employee that satisfies all the unemployment insurance benefit eligibility requirements may still be disqualified from receiving benefits for voluntarily quitting without good cause or for being discharged for work misconduct. Once a terminated employee files a claim for unemployment benefits, the Missouri Division of Employment Security (“DES”) mails the former employer a Claim Notice, which requires a response within 10 days. The Claim Notice permits the employer to protest an unemployment benefits claim because the former employee quit voluntarily or was discharged for misconduct. If the claim is not in dispute, the employer must still respond to acknowledge the claim.
Some employers routinely fail to respond to Claim Notices. They may systematically choose not to respond to Claim Notices to avoid becoming involved in a former employee’s benefits appeal. Continue reading »
03/26/14 2:22 PM
Business Law, Employment Law | Comments Off |
Unemployment Insurance in Missouri: Should Employers Respond to Claim Notices?