By Jeffrey L. Michelman
October 28, 2011 is the Deadline to Protect Your Trademarks from the New .XXX Domain
In the Jurassic age of the Internet, it seemed that only some nerds (now mostly wealthy) understood the full potential of Internet commerce. Large and small businesses appeared to have failed to grasp the importance of web sites and a proper Domain Name for such sites as well as its use for email addresses. Both have blossomed across the world and become a gateway to new methods of selling products and promoting brand recognition and goodwill.
Unfortunately, many of the nerds became pirates, taking the names of big well known brands as their own Domain Names and then holding those names for ransom. For a fee the company that never thought or sought to register a Domain Name for itself found they had to hire counsel to get their names back.
In those days, the law was behind the technological advancements and (as with most things technical) failed to anticipate the problems for business. Rather we lawyers had to show the Federal and State legislatures as well as the courts what action was appropriate. Lawsuits flew from antique word processors and physically delivered to a court’s inbox.
How did such a thing happen in the tech savvy end of the last millennium? Simple, business failed to keep up with the developments in the Internet and its opportunities for new forms of commerce. And the lawyers who predicted dire consequences of this lack of attention went unheeded and unnoticed.
Today the cyberpiracy epidemic has dwindled to a trickle and filing lawsuits on line has become commonplace. There are a host of statutory prohibitions, remedies and even newly created quasi judicial bodies to battle the few pirates left sailing. One such entity created to “help promote the natural expansion of the net” is an international body known as the Internet Corporation for Assigned Names and Numbers, or ICANN.
Now, as legal problems were quieting down, this international power that directs Internet Domain Name usage has decided to stir up the pot with the issuance of two new policies that, if again unheeded by business, could cause as much upheaval, costs and litigation as occurred when Domain Names were new.
ICANN first approved a rapid and unprecedented policy allowing the expansion of the number of generic Top-Level Domains (gTLDs). Business owners by now are familiar with the .COM, .NET, .ORG, and .EDU specifically approved Top-Level Domains as well as those indicating a specific country. Domain registrants were free to register almost any sequence prior to the Top-Level Domain, but had few options when choosing a Top-Level Domain.
With ICANN’s new program, the Top-Level Domain Name space has been opened to allow the registration of nearly any combination of letters, including brands or other terms, such as .bank, .Lawyer, .plumber, .boeing, .nordstroms, .stlouis, etc. While the full impact of this expansion is uncertain, it is clear that regardless of their intent to participate in the new program, business owners will need to reevaluate the way they currently monitor and enforce their brands on the Internet.
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09/22/11 3:29 PM
Business Law, Emerging Business, Intellectual Property, Litigation | Comments Off |
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The Domain Name Game: Category 4 Internet Storm Warning for Business
By Christopher D. Vanderbeek
When a Missouri business is faced with a workers’ compensation case, what can its supervisory employees do to assist in the defense of the business?
There are six essential tips to follow that apply in all workers’ compensation cases. These apply regardless of whether (a) an employee suffered a work injury that is indisputable and the injury is of the severity that the employee alleges; or (b) there is a dispute regarding an injury, such as conflicting accounts of how, when, and/or where an injury occurred.
Following these tips will result in a stronger defense for the employer and insurer. Conversely, ignoring them could irrevocably weaken the defense.
1. Be Proactive and Diligent.
- As soon as you find out that an injury has allegedly occurred, first write down all the facts you know.
- Next, speak to the injured employee and any witnesses. Witnesses would be any employees/vendors/visitors that were in the injured employee’s vicinity at the time of injury, even if they didn’t necessarily see the alleged incident.
- Note the conditions where the injury allegedly occurred and how it allegedly occurred.
In some cases, this is easier said than done. In cases where the injured employee does not immediately notify the employer of the alleged injury, it will not be possible to go to the scene of the alleged injury and speak to those present.
- In these cases, as soon as you become apprised of the alleged injury, write down the details as quickly as possible.
- Compile your witness list. Be sure to include any vendors and visitors who were in the vicinity at the time of the alleged injury.
- Figure out what employees were supposed to be working with the injured employee when the injury allegedly occurred. Find out if these employees were working with the injured employee at the time. Speak with the ones who were, with regard to the circumstances surrounding the alleged incident.
And part of being diligent is making sure to…
2. Pay Attention. Don’t just let the issue rest after the initial investigation.
- Take note of conversations in the days following the incident, as other employees might discuss the incident and pertinent information could arise out of their conversations.
- When the injured employee returns to work, note his or her interactions with other employees and take stock of the body part alleged to be injured.
- If you notice that there is or are one or two specific employees with whom the injured employee seems to talk to a lot and spend a lot of time around, seek out those employees, as they may have pertinent information.
- If possible, evaluate the injured employee’s behavior when he or she believes no one is watching.
And when being diligent and paying attention…
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09/11/11 6:00 AM
Business Law, Employment Law, Litigation | Comments Off |
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Six Must-Follow Tips for Employers with Workers’ Comp Cases
By Christopher D. Vanderbeek
Did you know that when a Missouri worker injures (or claims to have injured) himself during the course and scope of his employment, the worker’s employer automatically has a statutory duty to get the ball rolling to ensure that the worker receives workers’ compensation benefits? In Missouri, it starts with the employer filing a “First Report of Injury” with the state.
From this moment forward, the company will play a substantial and vital role in the defense of its interests, as well as the interests of its workers’ compensation insurance carrier. Other employees of the company, such as human resources personnel and the injured employee’s supervisors, are also in an invaluable position to assist in this defense.
For example, consider an employee who claims that a work-related injury has rendered him unable to use his dominant shoulder. If that same employee were to come into work one morning and brag to his co-workers that he caught a giant fish during the previous weekend, it would cast doubt on the severity, or even existence, of the shoulder injury. But without vigilance in reporting from other employees, it is likely that defense counsel would never come to know this information.
Missouri businesses must remember that when a worker allegedly suffers a work-related injury, defense counsel acts on behalf of the company’s workers’ compensation insurer as well as the company itself. This is because in every workers’ compensation claim filed in Missouri, both the insurer and the employer are named as defendants.
Furthermore, the more a company aids in the defense of a workers’ compensation claim, the lower the liability exposure likely will be. This in turn keeps the company’s insurance premiums lower than they would be otherwise.
Naturally, then, it is in the employer’s interest to assist in the defense of the claim.
Next up: Six must-follow tips when dealing with workers’ compensation cases.
Posted by Attorney Christopher D. Vanderbeek. Vanderbeek is involved in the evaluation and defense of workers’ compensation and other insurance claims, protecting the interests of employers and insurers.
09/6/11 10:00 AM
Business Law, Employment Law, Litigation | Comments Off |
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Workers’ Compensation Claims: What Comes First for the Best Defense
By Christopher D. Vanderbeek
The National Counsel on Compensation Insurance (NCCI) and the Missouri Department of Insurance, Financial Institutions and Professional Registration recently approved a change regarding the filing of work-related medical claims in Missouri. The change reportedly reduces the impact of medical-only claims on Missouri businesses’ experience ratings by 70%.
The change is effective in Missouri as of July 1, 2011.
To understand the change’s effect on Missouri businesses, one first must understand the “experience rating” (i.e. “experience modifier,” “experience modification rating”). The experience rating is a mathematical formula used by insurance companies to assess premiums. In part, the formula takes into account insurance-paid losses over the past three years.
Small losses (i.e. less than $5,000) have a greater impact on a company’s experience rating than large losses, because small losses are more frequent and more predictable than large losses. Medical-only claims (i.e. claims involving no lost work time) typically constitute small losses. Therefore, medical-only claims have a substantial impact on the experience rating computation.
It is for this reason that Missouri businesses have commonly paid medical-only claims in-house, without reporting the claims to their insurance carriers. Not reporting the claims has allowed businesses to insulate themselves from the impact that reporting the claims would have on the businesses’ experience rating and, as a result, on insurance premiums. However, this practice inevitably leads to employers failing to report proper loss data to the state Department of Labor. Accordingly, the change is intended to deter businesses from handling medical-only claims without the involvement of their insurance carriers.
The change comes just as data for the first quarter of 2011 has indicated that workers’ compensation insurance premiums increased nationally for the first time since 2005. The data was produced by a survey involving 39 insurance carriers (approximately 20% of the market). It indicated a modest 2% increase. Factors such as decreased investment income, increased medical treatment costs, and an increase in total claims filed (for the first time in 16 years) are said to account for the price hikes.
It is imperative that Missouri businesses understand the effect of this change. It is now financially beneficial for businesses to report all claims, even medical-only claims, to their workers’ compensation insurance carriers. Missouri businesses must act accordingly, ensuring optimal financial success in today’s economy.
Posted by Attorney Christopher D. Vanderbeek. Vanderbeek is involved in the evaluation and defense of workers’ compensation and other insurance claims, protecting the interests of employers and insurers.
08/14/11 11:00 AM
Business Law, Employment Law, Litigation | Comments Off |
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New Change in Workers’ Compensation Premium Calculation: Missouri Businesses Now Have Financial Incentive to Report Medical-Only Claims
By Thomas G. Glick
I attended and graduated from a public school and I received an excellent education. However, I am often struck by the fact that of all the lessons I learned in high school, the vast majority that I use in my everyday life, flow not from the curriculum but instead from an extracurricular activity, speech and debate. This is true in the most intuitive way in that my duties as an attorney bring me to a courtroom where public speaking skills are beneficial. Moreover, my recent term as President of the Bar Association required that I make frequent public presentations. However, focusing only on the public speaking experience gained from high school speech and debate competitions (and later in college) overlooks the most important lessons I learned from speech and debate; the ability to critically think.
Most people are familiar with the famous line from the movie, The Paper Chase when Professor Kingsfield (John Houseman) states that the purpose of law school is primarily to teach you to “think like a lawyer.” My interpretation of this phrase is that law school is about learning critical thinking. It is having the ability to not just know what the legal precedent is but being able to ascertain, then present, the respective value of potentially conflicting legal precedent. This skill, more than any other, was highlighted throughout my education as well as during my participation in speech and debate. Speech and debate required that I research form and enunciate arguments on both sides of any given question including arguments that I did not personally believe in.
In retrospect, I think that this was the greatest educational benefit I learned in high school. (I do not intend to devalue much of the other education I received from my high school as much of it serves me well in a more practical context. I would also acknowledge that critical thinking skills were taught in high school but speech and debate made it so the lessons had to be learned in order to excel in head-to-head competition and not merely in the more ephemeral competition in achieving good grades.)
05/4/11 12:57 PM
Litigation | Comments Off |
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High School Speech & Debate For Future Lawyers; Not Just Public Speaking Skills
By Thomas G. Glick
A lot of clients call me looking for contingency fee agreements. You hear a lot of talk about contingency fees. In part because of lawyers that are advertising them. Lawyers that use contingency fee agreements typically advertise as “if you don’t win, you don’t pay any attorney fees” (though you may pay costs). The problem with contingency fees is that lawyers take on additional risk for them. Many clients think of contingency fee agreements as an excellent opportunity for people who would otherwise not be able to afford a lawyer to gain access to the justice system, and they are. However, it is important to recognize that there is also a down-side to contingency fee agreements for clients.
As a rule, in my probate and trust practice, I do not take contingency fee cases for a variety of reasons. Clients are often let down by this because they wish that I was able to do that in order to represent them. In a contingency fee case, a lawyer is taking on more risk in representing a client. That is, the lawyer that takes on a contingency fee case, knows that if he loses he does not get paid. All risks have costs. He might well spend hundreds of hours working on the case in order to prepare for trial or even prepare settlement negotiations. The risk that they won’t get paid causes lawyers to increase their percentage fee. For this reason, contingency fee cases result in higher fees for attorneys.
In order to run a successful overall law practice, attorneys that rely on contingency fee cases must collect enough in the cases they win to make up for the cases that they lose. This means that if you have a case that you can win, you pay more money to your lawyer in order to achieve that victory because of the risk that you will lose.
Instead of contingency fee cases, I try to set my hourly rate at a reasonable level in order to assure that my clients are paying appropriately for my services and enough so that I can pay my staff and other overhead costs, but without the need to cover any additional risk.
If you want to learn more about contingency fee agreements from the lawyer’s perspective, in order to gain a better perspective from the client, you may wish to read the following articles from the American Bar Association and The Missouri Bar.
04/13/11 8:50 AM
Litigation, Probate | Comments Off |
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Contingency Fee Agreements – The Part They Don’t Tell You
By Brian S. Weinstock
There are some unfortunate unintended consequences of the August 28, 2005 Missouri Workers Compensation Reform.
I wrote Workers Can Now Sue Each Other for Negligent Acts (just published by Associated Industries of Missouri) because I believe the case (mentioned within) sets a terrible precedent from a public policy standpoint.
Do we really want employees suing each over simple negligence when there is a remedy for the injured worker via workers compensation?
Employees probably have no insurance to protect themselves over these types of issues. This could have a devastating effect on small and medium size businesses so I believe it needs to be overruled by the Missouri Supreme Court or the legislature and the Governor need to fix this issue quickly.
09/3/10 6:00 AM
Employment Law, Litigation | Comments Off |
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Workers Can Now Sue Each Other for Negligent Acts Committed Against Each Other
By Brian S. Weinstock
Whether you are a plaintiff or defendant with regard to a personal injury claim, it is important to determine whether there are any issues with respect to ERISA, FEHBA and Medicare.
Employee Retirement Income Security Act of 1974 (ERISA)is federal law which establishes minimum standards for pension plans in private industry and includes extensive rules with regard to federal income tax effects of transactions associated with employee benefit plans. Congress established this law with the intent to protect the interests of participants in employee benefits plans and their beneficiaries by requiring financial disclosure to them, establishing fiduciary duties with respect to the plans and allowing access to federal courts to obtain remedies. ERISA addresses pension plans in detail but also effects health care plans. Thus, ERISA applies to all employee welfare benefit plans offered by private sector employers or unions whether offered through insurance or a self-funded arrangement. ERISA’s preemption clause states that ERISA “shall supersede any and all state laws insofar as they relate to any employee benefit plan” which would include a health care plan.
Under an ERISA plan such as a self-funded health and welfare fund, i.e. union health insurance, a plaintiff can recover benefits due under the terms of the plan, enforce rights under the plan and receive a clarification of rights to future benefits under a plan. These health care plans outline when a participant must repay them. These plans typically include language such as when “you or your Dependent achieve any recovery whatsoever, through a legal action or settlement in connection with any sickness or injury alleged to have been caused by a third-party, regardless of whether or not some or all of the amount recovered was specifically for medicalor dental expenses for which Plan benefits were paid.” Moreover, it is not uncommon for the ERISA plan fiduciaries to require a beneficiary to sign additional documents before making any payment to a health care provider with respect to medical care for alleged injuries from a personal injury claim. These additional documents typically contain language which includes “I understand that the Fund must be reimbursed for medical benefits or for any benefits paid as a result of an injury or illness if any recovery is made for that injury or illness.” For example, a plaintiff in a state claim may have health insurance through a self-funded health and welfare fund.
If the health and welfare fund were to make payments to medical providers on behalf of the plan participant with respect to a personal injury claim, the health and welfare fund would be entitled to obtain reimbursement for all funds which were paid out to the medical providers. If the Fund was not reimbursed all the benefits that they paid on the claim, the fund would have the right to file a federal lawsuit seeking reimbursement of the funds they paid out on behalf of the plan participant. In practice, the fund would sue the former state claim plaintiff who is actually a plan participant. If this happens, the former plaintiff now turned defendant will most likely call their former attorney and sue them as well as the insurer, who insured the defendant in the state law claim, as third-party defendants in the ERISA case. A judgment in favor of the fund would require the former state law plaintiff to reimburse all funds their healthcare plan paid on their behalf as well as any other damages allowed under federal statute for ERISA claims such as attorney fees, interest and costs. It could be easy to overlook a potential ERISA claim; especially, if the plaintiff in the state claim is a dependent under an ERISA plan.
The Federal Employees Health Benefits Act (“FEHBA”)established a program to provide federal employees, federal retirees and their eligible family members with subsidized health care benefits. FEHBA has a broad preemption clause which is similar to the preemption clause in ERISA. Since the clauses are similar and because there is limited federal case law with respect to FEHBA, courts generally refer to decisions regarding ERISA’s preemption clause for guidance. A majority of federal courts have concluded the FEHBA preempts state law claims just like ERISA. Again, it is important to determine whether the plaintiff in the state claim is a direct beneficiary or dependent under a FEHBA plan in order to protect the FEHBA lien to avoid any further litigation to enforce the lien in federal court.
The Centers for Medicare and Medicaid Services (“CMS”) handles Medicare claims. With respect to workers compensation claims, CMS has established guidelines, such as being a current Medicare beneficiary, as to when CMS interests must be taken into account before the claim can be settled. If the plaintiff meets the threshold criteria for reporting to Medicare, the parties would be required to submit a proposal to CMS outlining various issues including the plaintiff’s injuries, their treatment, current physical condition and any expected future treatment arising from their injuries including prescription medication. CMS will review the proposal and make a determination as to what if any funds need to be placed in a Medicare Set-Aside trust to pay for future medical treatment related to the alleged accident. Besides being a current Medicare beneficiary, CMS has established other thresholds which require one to take into account Medicare’s interests before a workers compensation claim is settled.
If one fails to take into account Medicare’s interest, Medicare can deny medical benefits to the injured party for their injuries at any time in the future once they become a Medicare beneficiary. If one fails to take into account CMS’s interests with respect to their thresholds then CMS is authorized to file a lawsuit against “any entity” including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received any portion of a third party payment directly or indirectly if those third party funds should have been paid for injury related medical expenses. Moreover, any plaintiff attorney who fails to properly recognize Medicare’s interests can be liable for double damages. With regard to liability claims, liability insurance, including self insurance, no fault insurance and workers compensation insurance must register electronically with CMS by September 30, 2009. As of January 1, 2010 claims must be tracked by the insurers to determine whether injured parties are Medicare beneficiaries. All parties have to report these claims to CMS as of April 1, 2010.
Dating back to January 1, 2010, if a liability insurer obtained a lump sum settlement with a Medicare beneficiary for $5,000 or more, Medicare must be notified so that they are allowed to determine whether a Medicare Set-Aside trust must be established for the plaintiff with respect to future medical treatment for any of the injuries allegedly related to the liability claim. At this time, CMS has no plans for a formal set-aside process with respect to liability claims but it will review and approve Medicare Set-Aside trust accounts for liability claims. For every day that CMS is not notified, there is a $1,000 per day penalty for insurance carriers who fail to report settlements to Medicare within 60 days of payment. It is important to note that CMS is constantly issuing memorandums updating their policies and procedures with respect to Medicare Set-Aside trusts; thus, Medicare could ultimately issue a formal set of procedures for Medicare Set-Aside trusts for liability claims.
In conclusion, it is extremely important to determine whether there is an ERISA, FEHBA or Medicare issue with respect to a personal injury claim.
03/2/10 9:00 AM
Employment Law, Litigation | Comments Off |
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ERISA, FEHBA, Medicare (CMS) and Personal Injury claims
