MedCity News reports that one of the nation’s largest dialysis providers will pay $270 million to settle a whistleblower’s allegation that it helped Medicare Advantage insurance plans cheat the government for several years.

Fred Schulte explains:

The settlement by HealthCare Partners Holdings LLC, part of giant dialysis company DaVita Inc., is believed to be the largest to date involving allegations that some Medicare Advantage plans exaggerate how sick their patients are to inflate government payments. DaVita, which is headquartered in El Segundo, Calif., did not admit fault.

Read the MedCity News article.

Bad corporate directorship can be incredibly detrimental to a company or organization. From inattention to detail to feelings of entitlement, bad board members can seriously impede board operations, waste precious resources, and stifle best-practice corporate governance.

The National Association of Corporate Directors has published  “A Field Guide to Bad Directors,” in which four-time corporate chair and CEO of Special Investigations Michael Pocalyko

• lays out the defining characteristics of a bad director,
• identifies 14 of the most prevalent bad director archetypes, and
• offers suggestions for mitigating the effects of a bad director.

Additionally, Pocalyko interviews three seasoned directors about their personal experiences with deficient board members and what management styles and personal qualities are beneficial in maintaining a high-performance board.

The article can be downloaded at no charge from the NACD website.

Download the article.

You can do a lot of damage with a signature, warns Jack Garson of Garson Law LLC in Bethesda, Maryland. You can go broke.

In an article on the website of Forbes, he discusses five types of contracts that have caused the most disasters.

First, he warns of the dangers of assuming that leases are standard, so there’s no reason to read every clause.

On the subject of loan agreements, Garson’s advice is to negotiate, consult advisors, and bargain. Most of all, he adds, get the right to prepay the loan.

He also covers construction contracts, partnership agreements, and personal guarantees.

Read the article.

A recent Ninth Circuit ruling that Uber’s arbitration agreements did not violate the National Labor Relations Act provides a major victory to Uber by requiring each plaintiff to separately arbitrate his or her claims.

Christine M. Fitzgerald, writing in the Jackson Lewis California Workplace Law Blog, explains that plaintiffs filed a putative class action against Uber for failure to remit gratuity paid by customers, and for misclassification of the drivers as independent contractors and failing to pay their business expenses. The O’Connor plaintiffs sought an order declaring Uber’s 2013 arbitration agreements unconscionable.

The panel rejected plaintiffs’ argument that the lead plaintiffs constructively opted out of arbitration on behalf of the entire class.

Read the article.

A  bankruptcy court has ruled that an arbitration clause was binding and ordered the stay lifted to permit arbitration in a bankruptcy proceeding to go forward, according to a post on the Bankruptcy Update Blog of Patterson Belknap Webb & Tyler.

Authors Jonah Wacholder and Daniel A. Lowenthal explain that, when a bankruptcy petition is filed, an automatic stay comes into effect staying proceedings against the debtor or the debtor’s property.

The court “reasoned that because the contracts had been formed before the bankruptcy case was filed, and because the bankruptcy case was now a chapter 7 liquidation rather than a chapter 11 reorganization, adjudication of the validity of the contracts was not sufficiently entangled in the bankruptcy case to count as a core proceeding.”

Read the article.

The annual holiday advertising blitz soon will begin signaling the year’s end, but lawyers and their firms still have plenty of time to lay the groundwork for effective legal marketing as we head into 2019, writes Bruce Vincent for Muse Communications.

He offers some recommendations, focusing on a few deadlines and easy-to-employ tactics prior to the New Year that can be used to market individual attorneys and firms.

First, now is the time to start working toward nominations for the “best of” and “best lawyers” lists, Vincent suggests. This also is a good time either to start or update a firm’s social media presence. And the end of the year is the time to send holiday-appropriate greetings to clients and potential clients.

Read the article.

A dispute over the songwriting credit for the iconic “Stairway to Heaven” took a surprising twist last week when a California appellate court reversed a 2016 copyright victory for Led Zeppelin and ordered a new trial, according to a post on the website of Androvett Legal Media & Marketing. The Ninth Circuit ruling means that the estate of Randy Wolfe (aka Randy California) has a second chance to convince a jury that one of classic rock’s most recognizable guitar riffs was based on work by the largely forgotten 1960s-era performer.

In 2016, a Los Angeles jury took just 15 minutes to find that “Stairway to Heaven” was not substantially similar to “Taurus” written by Wolfe’s band Spirit. The Ninth Circuit judges found that the trial judge had failed to advise jurors that while individual elements of a song may not qualify for copyright protection, a combination of sufficiently original elements may qualify.

Copyright lawyer Amanda Greenspon of Dallas-based Munck Wilson Mandala said there’s no clear legal criteria to use in determining what a “combination of sufficiently original elements” is and courts have reached inconsistent conclusions. She said last week’s decision appears to reflect the sentiment behind the 2015 ruling awarding the estate of Marvin Gaye more than $7 million after a jury found that Robin Thicke and Pharrell Williams had copied portions of Gaye’s “Gotta Give it Up” in their 2013 hit “Blurred Lines.”

“That case has been criticized for allowing the copyright holder to protect a style as opposed to an actual composition,” she said. “That’s not the express precedent from the case which had a number of procedural issues, but it definitely resonates in the decision to remand it back to the trial court and essentially provide jury instructions that certain common elements can be protected under copyright even when they may be standard to a genre.”

Greenspon notes that copyright law offers protections against claims of infringement for certain works in books, plays and films that are common to a genre. “There is no analogous doctrine in music, but we see the same concept play out all the time,” she said. “Songs within a genre of music often share common elements. How musicians handle that is often based on the two songs’ relative commercial success. In some instances, it’s easier to acknowledge credit and not litigate.”

The law firm that spent nine years fighting and winning health care for veterans subjected to government-administered human testing of chemicals including sarin, mustard gas, and LSD was awarded $3.4 million in fees, a small fraction of the value of the hours the firm said it put into the case.

Bloomberg Law reports that Morrison & Foerster LLP accepted a fee award from the U.S. Army that’s $16 million less than the fee the firm could have sought.

“The fee award is the latest and nearly last chapter in the litigation by soldiers subjected to the government’s decades-long human testing program who were seeking recognition and health care above what they could get at the Veterans Administration for injuries they suffered,” writes Bloomberg’s Joyce Cutler.

Read the Bloomberg Law article.

The Ohio law firm owned by disbarred attorney Stan Chesley has agreed to pay $23.5 million to hundreds of the firm’s former clients after a now-four-year battle over money a judge said they are owed, according to The Cincinnati Equirer.

Reporter Kevin Grasha writes that Chesley’s attorneys agreed there was “unjust enrichment” to the firm when it took millions of dollars more in fees than it should have as part of a class-action lawsuit.

Chesley, who was disbarred in Kentucky over his actions, was the sole owner of the firm, Waite Schneider Bayless & Chesley. Legal action against him will continue, said Angela Ford, the attorney who represents the 382 former clients.

Read the Cincinnati Enquirer article.

Vizio has announced a potential $17 million settlement in a recent class action lawsuit, which could result in a pay-out that is as little as a few cents for each of the millions of people claiming the company’s smart TVs collected and shared their private viewing data without their consent, reports the New York Daily News.

A ProPublica 2015 expose alleged Vizio used its smart TVs to spy on an estimated 16 million Vizio TV owners who purchased and connected their televisions to the internet between Feb. 1, 2014 and Feb. 6, 2017, writes reporter Jessica Schladebeck.

“After payment of notice and administration costs and any approved award of attorneys’ fees, costs and service awards, all funds remaining in the settlement fund will be distributed to the class,” according to court documents.

Read the NY Daily News article.

Quarles & Brady LLP announced that Peter C. Spier has joined the firm’s Business Law Group as a partner in its Chicago office. Previously, Spier was a partner at Gould & Ratner LLP.

The firm said Spier represents private equity funds, venture capital investors and privately-held companies in structuring and negotiating mergers & acquisitions, debt and equity financing transactions and myriad contractual arrangements. He also serves as outside general counsel for middle-market and emerging growth companies.

In addition to his corporate practice, Peter represents clients in the gaming sector, including sports betting companies, and the cryptocurrency/blockchain industry, where he handles the formation and structuring of cryptocurrency investment funds and advises clients on the impact of blockchain technology on their business.

“Cryptocurrency and blockchain technology is a burgeoning area of law and is already having a tremendous impact on the ways that transactions are conducted and financial assets are tracked,” said Paul Langer, Chicago Office Managing Partner. “Peter has been at the forefront of this movement and is among the best to advise clients on this technology underpinning their business.”

Spier has been named an “Illinois Leading Lawyer” in the areas of M&A, Securities & Venture Finance, Closely & Privately Held Business Law and Casino Gaming Law. He has also been named a “Rising Star” by Illinois Super Lawyers and has been recognized for “Excellence in Private Equity Legal Services” by Corporate LiveWire. Spier received his J.D. from Northwestern University and his B.A., cum laude, from the University of Pennsylvania.

Flexera will present a complimentary webinar discussing the OpenChain Project for a secure and compliant software supply chain.

The event will be Thursday, Oct. 25, 2018, at 11 a.m. Central time.

The Linux Foundation has developed the OpenChain project, a standard that can help software suppliers manage their production process better, to ship secure and compliant software to customers.

In this webinar, Shane Coughlan, general manager – OpenChain at the Linux Foundation, will give an overview of OpenChain; why it is needed and how it helps address issues in software production. Participants will learn how to improve their software production processes.

Register for the webinar.

Sullivan & Cromwell partner Francis Aquila deleted his Twitter account after he posted a response to presidential press secretary Sarah Huckabee Sanders in which he told her to “Rot in Hell You B!tch.”

The ABA Journal reports that the tweet was “a sarcastic response to the White House press secretary after she praised Sen. Lindsey Graham, R-S.C., who had attacked Democrats motivations during a spirited defense of U.S. Supreme Court nominee Brett Kavanaugh.”

In an email to his firm colleagues, Aquila wrote: “Last evening, I responded to a tweet from Sarah Sanders in an inappropriate and hurtful manner. Clearly my emotions got the best of me, but equally clearly neither Ms. Sanders nor any woman should be subjected to such animus. I take full responsibility for my ‎actions and I sincerely apologize to Ms. Sanders.”

Read the ABA Journal article.

Legal experts say the penalties that the SEC doled out to Elon Musk for  “false and misleading” statements made on Twitter could have been much, much worse for Musk and his car company, reports Wired.

Reporter Aarian Marshall writes that “Musk and Tesla will have to each write $20 million checks for the misadventure, which will be disbursed to investors harmed during the wild market swings that occurred after Musk’s tweets.” Musk had tweeted that he planned to take Tesla private and funding had been secured.

“Not settling with the SEC could have led to a more dire outcome,” Marshall explains. “The SEC’s initial suit sought to bar the CEO from becoming an officer or director for any public company, perhaps for life.”

Read the Wired article.

Above the Law reports that women in the Jones Day Business and Tort Litigation group have been “encouraged” to tell management if they were pregnant or planning on becoming pregnant within the next year.

ATL executive editor Elie Mystal writes:

We’re told that partner Stephen Sozio, who is co-leader of the firm’s health care practice and chair of the firm’s litigation department in Cleveland, added that he understood if women who were in their first trimester were uncomfortable talking to him. He encouraged those women to contact his administrative assistant and tell her about their plans.

The women were told that the information would help the group plan its budget.

Read the Above the Law article.

Resolving disputes in arbitration can sometimes lead to surprising results, even ones that might be inconsistent with the underlying contract or with applicable state law, warns Ken Slavens for Husch Blackwell.

A recent Eighty Circuit decision is an example: The arbitrator in this case awarded attorney’s fee of nearly a million dollars more than the liability cap in the contract. Despite the possibility that this result was inconsistent with state law, the Eighth Circuit let the award stand.

“In the court’s words, ‘[t]he parties bargained for the arbitrator’s decision; if the arbitrator got it wrong, then that was part of bargain,’” writes Slavens.

Read the article.

Indemnity provisions are widely used in the energy industry as a method of contractually apportioning liability between parties. These provisions are a staple in Master Service Agreements and can be unilateral or mutual, explains Zoe Vermeulen in a post on the website of Kean Miller LLP.

The author discusses oilfield anti-indemnity acts in Texas, Louisiana, New Mexico and Wyoming,.

The article also covers construction anti-indemnity acts.

“Like the Oilfield Anti-Indemnity Acts, these construction anti-indemnity acts vary widely from state to state and have many exceptions and nuances. And awareness of and familiarity with these statutes is also critical to adequately evaluating the viability of a contractual indemnity provision,” writes Vermeulen.

Read the article.

Adam Weinstein and Tony Feuerstein will join Sidley Austin LLP’s global Private Equity and M&A practices as partners in New York.

Weinstein and Feuerstein are private equity lawyers who have represented private equity sponsors and their portfolio companies in high-profile private equity M&A transactions, the firm said in a release.

“We are delighted that Adam and Tony have decided to join Sidley as we continue to advance our strategy to build out our private equity capabilities,” said Larry Barden, chair of Sidley’s Management Committee. “Their arrival marks a major step forward for us in New York, and they will play pivotal roles in leading the expansion of our private equity and M&A services in that market.”

Weinstein and Feuerstein regularly advise clients on complex carveouts, take-privates, cross-border M&A, leveraged buyouts and investments and divestitures, as well as the management of portfolio companies and corporate governance matters.

“Adam and Tony are rare talents sought after by private equity sponsors, CEOs and other clients for their knowledge, tenacity and client service,” said Dan Clivner, co-leader of Sidley’s global Private Equity practice and member of the firm’s Executive Committee. “They will help us take Sidley’s growing Private Equity practice to the next level in New York and worldwide. We are very excited to welcome them to the firm.”

Bradford T. Hammock has joined Littler as a shareholder in its Tysons Corner, Va. and Washington, D.C., offices. Previously, Hammock served as managing principal of Jackson Lewis P.C.’s Washington, D.C. regional office.

Hammock, the 10th shareholder to join Littler this year, has experience in workplace safety and health law, having been lead counsel for safety standards at the Department of Labor (DOL). He will be a member of Littler’s Workplace Policy Institute (WPI), which engages branches of government to ensure that employers have a voice in legislative and regulatory developments that impact their workplaces and business strategies, the firm said in a release.

This summer, WPI added James Paretti, former chief of staff and senior counsel to the acting chair of the Equal Employment Opportunity Commission, and Lance Gibbons, a veteran of representing clients on Office of Federal Contract Compliance Program matters. WPI also includes Tammy McCutchen, former administrator of the DOL’s Wage and Hour division.

“As we represent our client’s interests in the nation’s capital, Brad is an important addition to WPI and strengthens the prominence of our OSHA practice,” said WPI co-chair Michael Lotito. “His reputation and clout in Washington, which stems from his work developing federal ergonomics standards in the early 2000s, further rounds out our group of elite WPI practitioners who are on the front lines of critical employment, labor and benefits issues.”

“Brad is well-known in the Beltway and throughout Virginia, and he brings extensive experience to our office and the firm regarding workplace safety and health issues,” said Michael McIntosh, Tysons Corner office managing shareholder. “He’s a relentless advocate on behalf of employers, and his practice further expands the capabilities we can offer our clients, cementing Littler’s position as the preeminent management-side labor and employment practice in the region.”

“I’m thrilled to be joining Littler,” said Hammock. “Not only does the firm provide a strong platform for my safety and health compliance practice, but their work at the policy level in the Beltway provides a unique opportunity to create a positive, long lasting regulatory impact on our clients.”

Hammock earned his J.D., magna cum laude, from Syracuse University and his B.A. from the University of Virginia.

Robert C. Freed and Conrad A. Hansen of the intellectual property law firm Moore & Hansen have joined Dykema’s Minneapolis office, both as senior counsel.

Founded in Minneapolis as the Williamson Law Firm in 1885 by James F. Williamson, Moore & Hansen was Minnesota’s first patent, trademark, and copyright law firm. Led by both Freed and Hansen, the Moore & Hansen firm counseled clients on enhancing the value of their businesses in a number of ways, including providing strategic analysis of potential patent, copyright, trademark, and trade secret protection, IP asset management, licensing, patent and trademark procurement, and litigation, Dykema said in a release.

“We are thrilled that Bob and Conrad have decided to join Dykema. Adding these accomplished IP attorneys to our ranks deepens our firmwide bench and enriches our ability to provide IP counsel to all of our clients,” said Reed Heimbecher, Leader of Dykema’s Intellectual Property Transactional Practice Group and Office Managing Member of the firm’s Minneapolis office. “In addition to their legal proficiency, Bob and Conrad are well-respected in the Minneapolis community, and their knowledge will be invaluable to our clients and our firm.”

Freed served as president of Moore & Hansen and counsels clients on all aspects of patent, trademark and copyright law, with an emphasis on patents. Having earned an M.S. and Ph.D. in Food Science, with a minor in Biochemistry, from the University of Wisconsin-Madison, Freed has experience in the food science and biochemistry sectors, complementing Dykema’s Food & Beverage Industry Group, which is also led from the firm’s Minneapolis office. He also has experience with innovative medical and mechanical devices, and is well-versed in managing IP portfolios, advising on licensing matters and strategic IP planning.

Prior to practicing with Moore & Hansen, Freed served as patent counsel for Cytran International and for the Wisconsin Alumni Research Foundation (WARF). Following law school, he practiced in Minneapolis with Merchant & Gould, where he was made a partner. Freed received his B.A. in Chemistry from St. Olaf College and his J.D. from the University of Wisconsin-Madison.

Hansen, formerly a managing partner at Moore & Hansen, focuses his practice primarily on trademark and patent prosecution before the United States Patent and Trademark Office (USPTO) for individuals, startups, and mid-sized corporations. He experienced in managing IP portfolios, advising on licensing matters, and strategic IP planning. Hansen previously served as president of the Minnesota Intellectual Property Law Association (MILPA) and remains an active member. He earned a J.D. as well as a B.S. in Electrical Engineering from the University of Minnesota.

“This is a natural next step for Moore & Hansen as our clients and their legal needs have continued to evolve along with those of the region’s predominant industries and technologies,” said Freed. “Dykema’s national platform will allow us to expand our services to clients. As such, we are excited to join Dykema and add to the firm’s already strong and dynamic capabilities in the IP sector. Dykema is driven to serve and deliver for its clients, and we look forward to being part of that culture.”