Judge Dismisses Challenge to Union Laws by U.S. Chamber of Commerce

A federal judge recently dismissed a lawsuit against the city of Seattle filed by the United States Chamber of Commerce, challenging a landmark labor law allowing Uber and Lyft drivers to unionize. United States District Judge Robert Lasnik held that the matter was brought prematurely, as the city ordinance had not yet taken in effect. The Chamber, however, indicated that the court made it clear at oral arguments that it would eventually hear a substantive challenge at a later time.

The court further held that the U.S. Chamber of Commerce had no standing to bring the lawsuit because the Chamber was not directly impacted; the fact that Uber and Lyft were Chamber members did not lend standing to the Chamber itself. “Neither of the Chambers’ members has suffered an injury that is traceable to the Ordinance and would be redressed if the Ordinance were declared invalid or enforcement were otherwise enjoined,” the ruling stated. “Thus, the Chamber itself has no standing to pursue the claims asserted in this litigation.”

Chamber of Commerce of the United States of America v. City of Seattle

Daniel P. Sullivan
dsullivan@mblb.com

Study Finds Medical Marijuana Reduces Need For Pain Medications

A recent study from the University of Georgia has concluded that states that pass medical marijuana laws tend to experience a significant decline in the use of more traditional FDA-approved medication in the treatment of medical conditions—particularly pain. According to the study’s co-author and chair of public policy with the University of Georgia’s Department of Public Administration and Policy, W. David Bradford, “There was a substantial shift away from the use of [U.S. Food and Drug Administration]-approved drugs when states turned their medical marijuana laws on.” Similarly, there was no decline in prescription drugs filled to treat conditions for which marijuana would not be appropriate.

Researchers for this study analyzed all prescriptions filled by Medicare Part D enrollees from 2010 to 2013 and compared states that had legalized marijuana against states that had not. In the jurisdictions where medical marijuana is legal, the study found that, not only had prescription medications to treat pain sharply declined, but this decline saved taxpayer money. Specifically, in 17 states and Washington D.C. with legalized medical marijuana, the study calculated savings of $165 million.

In spite of this study (and numerous others), the United States Drug Enforcement Agency also recently re-affirmed its stance that medical marijuana is a Schedule I drug. According to DEA guidelines, Schedule I substances have “no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse.”

http://content.healthaffairs.org/content/35/7/1230.abstract

Daniel P. Sullivan
dsullivan@mblb.com

IRS Adjusts Mileage Reimbursement Rates

Effective January 1, 2017, the standard mileage rates for calculating deductible costs for vehicles driven for business purposes have been adjusted. The new rates, representing a slight decrease, are $0.535 per mile (down from 54 cents in 2016). This rate applies to cars, vans, pickup trucks and panel trucks. The rate for such vehicles driven for medical or moving purposes is $0.17 per mile (a $.02 decrease from 2016); and mileage for driving for service of charitable organizations is deductible at $0.14 a mile.

Daniel J. Hoerner
dhoerner@mblb.com

2017 Louisiana Judicial Interest Rate

In Louisiana, the rate of judicial interest for the 2017 calendar year has increased to four and one quarter (4.25%) percent per annum. The judicial interest rate had been set at 4.00% since 2011.

Adam P. Sanderson
asanderson@mblb.com

Franchisor Not Liable for Gym Patron’s Injuries

The Louisiana Third Circuit Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of a gym franchisor, Anytime Fitness. Plaintiff was injured while performing squat exercises on a Precor-brand Smith machine when the weighted bar fell on him. Plaintiff named as defendants the franchisor of the gym, Anytime Fitness, the franchisee of that gym location, Fitness Partners of Pineville, LLC, and Precor, Inc., the manufacturer of the Smith machine.

Supported by an affidavit of the Vice-President of Operations of Anytime Fitness and a copy of the franchise agreement between Anytime Fitness and Fitness Partners, Anytime Fitness filed for summary judgment contesting liability. The motion and its supporting evidence established that Anytime Fitness did not have day-to-day control over its franchisee’s management procedures and did not require its franchisee to purchase the specific equipment at issue in this matter. After the burden had shifted to the plaintiff to establish that Anytime Fitness had any day-to-day control over the franchise, plaintiff failed to come forward with any evidence to the contrary.

Instead, plaintiff argued that Anytime Fitness could have required the franchisee to take certain steps that may have avoided the accident. The Franchise Agreement required that “[a]ll equipment will be kept in good working order and will meet our quality standards.” However, the remedies provided by the Franchise Agreement were limited to notice with an opportunity to cure and termination of the agreement. The court noted that a previous decision by the Louisiana Fifth Circuit considered this type of recourse as an indication that the franchisor did not have day-to-day control over the franchisee’s equipment. The Louisiana Third Circuit therefore affirmed the trial court’s grant of Anytime Fitness’s motion for summary judgment, dismissing it as a defendant.

Nearhood v. Anytime Fitness

Philip D. Lorio, IV
plorio@mblb.com

Former Professional Wrestler Sues for Damages Resulting From Head Injuries

Following the continued trend of professional athletes suing both their sports leagues and individual teams, former WWE superstar “Superfly” Jimmy Snooka has filed suit against World Wrestling Entertainment, Inc. Snooka and dozens of other former WWE professional wrestlers are alleging that they sustained neurological injuries as result of years of pounding into wrestling mats. The wrestlers are also alleging that the WWE hid the long-term effects of their activities on their neurological health.

The WWE is further accused of failing to care for wrestlers’ repetitive head injuries “in a medically competent or meaningful manner” and “plac[ing] corporate gain over its wrestlers’ health, safety, and financial security, choosing to leave the plaintiffs severely injured and with no recourse to treat their damaged minds and bodies,” according to the complaint.

The WWE is confident that the suit will be dismissed, stating that a federal judge has already dismissed prior actions filed by counsel for the wrestlers, stating that the lawyer had previously made “patently false allegations about the WWE.”

The matter was filed in United States District Court, District of Connecticut (New Haven), Laurinaitis v. World Wrestling Entertainment Inc.

Daniel P. Sullivan
dsullivan@mblb.com

The 100 Day Plan

Donald Trump’s election to the presidency marks the first time since 1952 that America has elected a political outsider. That is, it is the first time since Dwight Eisenhower was elected president that a citizen who had never previously been elected into a governmental office had been elected President of the United States. Since ending a most tumultuous campaign filled with aggressive promises, which has lead the world to ask “Will he do that?” many wait anxiously to hear the policy Mr. Trump intends to promote. In one of his first attempts to answer this question, the president-elect recently released a video statement outlining his agenda for his first 100 days in office. The following is a bullet point outline of that agenda, at the core of which lies one simple principle according to Mr. Trump—“Putting America First”:

–  Issue a notification of intent to withdraw from the Trans-Pacific Partnership;
–  Cancel “job-killing restrictions” on the production of American energy;
–  Formulate a rule that mandates the elimination of two old regulations for every one new regulation;
–  Ask the Department of Defense and the Chairman of Joint Chiefs of Staff to develop a comprehensive plan to protect America’s infrastructure, including a plan to counter cyber attacks;
–  Direct the Department of Labor to investigate all abuses of visa programs that undercut the American worker; and
–  Impose a five-year ban on executive officials becoming lobbyists after they leave the Administration and impose a lifetime ban on executive officials lobbying on behalf of foreign countries.

Whether or not these efforts will be executed and whether they will meet road blocks presented by the limitations and checks on the executive power provided by the United States Constitution, or otherwise, is, of course, yet to be seen.

Philip D. Lorio, IV
plorio@mblb.com

New Time Periods to Respond to Written Discovery in Louisiana

Effective August 1, 2016, the time periods for which a party has to respond to interrogatories, requests for production of documents, and requests for admissions has changed under the Louisiana Code of Civil Procedure. Parties now have thirty (30) days from the time they are served with written discovery to respond, as opposed to the prior fifteen (15) day rule, in Louisiana state courts.

Double check the date you sent that discovery before demanding a discovery conference.

Philip Lorio, IV
plorio@mblb.com

Violating Federal Law While Trying to “Catch’em All”

U.S. Coast Guard officials are investigating security breaches of the ferry terminal in Edmonds, WA by Pokemon GO players. For those that don’t have a teenager or are otherwise not familiar with the recent phenomenon, Pokemon Go is an online game where “trainers” use a cell phone app to hunt down and capture digital monsters found hiding through the game’s real-world map. “Pokestops” can be found at real world locations, drawing players in the hunt for pokemon and other bonuses.

According to the Coast Guard, one of these “Pokestops” is located at the end of a ferry ramp. This has drawn hundreds of players to the ramp, creating both a security and safety hazard, and resulting in trespassing on federal property. Around the country, “trainers” have been caught playing the game in other less than appropriate places, including, among others, Arlington National Cemetery and the United States Holocaust Memorial Museum. The Coast Guard has begun working with Nintendo Corporation, the games developer, on removing game related points of interest from federal sites. Meanwhile, the Pokemon Go craze continues, especially here in New Orleans where an impromptu statue of one of the game’s characters recently appeared in a local park.

poke

Pierce C. Azuma
pazuma@mblb.com

Louisiana on the Forefront of Controversial “Right to Try” Laws

Louisiana’s “Right To Try” law, which gives terminally ill patients access to medicines not yet approved by the FDA, went into effect on August 1, 2016. Louisiana is joined by more than two dozen other states enacting their own “Right To Try” laws.

The law, House Bill 232, was revised earlier in the year to add legal protections for manufacturers of the trial medications. Specifically, the law states in relevant part:

Nothing in this section shall be construed as creating a cause of action by or on behalf of any person against a manufacturer of an investigational drug, biological product, or device, or against any person or entity involved in the care of an eligible patient using and investigational drug, biological product, or device, for any harm done to the eligible patient resulting from the investigational drug, biological product, or device.

Louisiana’s law is in direct contradiction with a similar federal statute that requires a patient with a life-threatening disease first receive express FDA approval before accessing an experimental drug. Essentially, Louisiana’s law would allow patients to bypass the FDA access program and obtain the experimental drug(s) directly from the manufacturers, who are shielded from liability. While the impact of this program has yet to be realized, it is sure to see its fair share of litigation in the future.

https://www.legis.la.gov/Legis/ViewDocument.aspx?d=902583

Caitlin R. Byars
cbyars@mblb.com