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Banking & Finance Law Report

Roundup: Recent Business Developments

Posted in Health Care Lending, Labor Law, Product Liability, Summary of PorterWright blog posts

The first six weeks of 2014 have been abundant with news and cases that provide insight for financial institutions (and other businesses) that need to be aware of regulatory, legislative and judicial developments and how they affect the U.S. business environment.

Porter Wright attorneys have written several alerts and articles about recent cases and best practices; we offer a summary below.

A merger for better healthcare…no problem, right? Wrong, says the FTC

By now, you likely are accustomed to hearing about the federal government challenging the merger of two hospitals or health systems. More often than not these days, the federal government wins. That is true even in the face of claims by the parties the merger is necessary to reduce costs and/or improve the quality of health care provided — the very foundation for the Affordable Care Act.

So it is noteworthy when the acquisition of a physician group by a health system is challenged. It is even more noteworthy when “lower cost/higher quality” is the rationale for the acquisition, and more noteworthy still when the federal and state government were NOT the initial parties to sue. All three aspects were present in FTC v. St. Luke’s Health System, a case in which a federal judge last week handed the FTC and the Idaho AG a significant victory, ordering the defendants to unwind their previous acquisition. Read the full alert.

For more information, contact Jay L. Levine or Robert W. McAdams.

 A guide through the state action maze

For those who operate or deal with public hospitals — particularly hospitals in areas with few or more-widely dispersed rivals — the U.S. Supreme Court’s decision in FTC v. Phoebe Putney, et al. sounded a warning to anyone who assumed public hospitals enjoy a complete state action defense to antitrust challenges. The opinion not only clarifies the “foreseeability” standard, but also portends at least three possible changes in how lower courts will analyze assertions of the state action defense to the antitrust laws.

This article, published by the American Health Lawyers Association, briefly traces the origins of the state action doctrine, provides contextual background for the Phoebe Putney decision and explains the decision itself. Finally, the article provides a concise framework under which state action issues will be analyzed and identifies those areas where further case law development will be required. Read the full article.

 For more information, contact Jay L. Levine.

Anti-harassment policies key to limiting employer liability

Under both Ohio and federal law, unlawful workplace harassment is not limited to claims based on sex. Harassment on the basis of race, religion, color, national origin, age or disability is also prohibited. Businesses may be held liable not only for harassment by supervisors and managers, but also for harassment by co-employees or even customers.

Though the law is still evolving, an employer with an effective anti-harassment policy and complaint procedure may enjoy greater protection from liability. Prompt and effective action in response to an employee’s complaint of harassment by a co-worker or customer also may insulate the employer from liability. Read the full article, which was published in most recent edition of the Ohio State Bar Association book Legal Basics for Small Business.

For more information, contact Sara H. Jodka or Bradd N. Siegel.

Cummins casts light on admissibility of CPSC investigations of products

When a 3-year-old Kentucky boy sustained second and third degree burns while playing with a BIC cigarette lighter he found on the floor of the family truck, his father sued — alleging violations of Kentucky’s Consumer Protection Act and the federal Consumer Product Safety Rule. BIC responded with evidence that the CPSC never had investigated, complained about, taken any enforcement action in relation to, or found the lighter to be out of compliance with this requirement.

The court’s opinion in Cummins v. BIC USA, Inc. provides four key takeaways for product manufacturers who confront evidence of CPSC action or inaction in defense of state law products liability cases. Read the full alert.

For more information, contact Terrance M. Miller or Jason T. Gerken.

FTC revises HSR and interlocking directorate thresholds

In January, the Federal Trade Commission (FTC) announced the annual changes to the notification thresholds for filings under the Hart-Scott-Rodino Antitrust Improvements Act (HSR), and certain other values under the HSR rules. The most important change is that the minimum size-of-transaction threshold will increase from the current $70.9 million to $75.9 million. The filing fee thresholds have similarly increased. Read the full alert.

For more information, contact Jay L. Levine.