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Posts Tagged ‘#FMGLaw’

Self-Driving Cars Will Likely Change the Insurance Landscape

Posted on: September 21st, 2016

By: Melissa Santalone

This week Uber debuts its pilot program for self-driving cars in Pittsburgh.  These lucky Uber users in Pittsburgh will be among the first Americans to come into direct contact with technology that is expected to eventually make its way into our everyday lives.  With the greater implementation of this technology, huge changes are likely to come in the legal and insurance realms and new cyber security concerns will be created.

The increased usage of self-driving cars, while intended to make driving safer, also opens up new opportunities for hackers.  Every car operated by a computer could be at risk of being taken over by hackers or invaded by ransomware or viruses.  This could pose catastrophic consequences for passengers, as well as other vehicles sharing the road.  This is especially true for fleets of vehicles programmed to communicate with each other, a problem which will no doubt be of special interest to Uber.  These new risks create new needs for protection by automakers, fleet operators, and individual vehicle owners.  Insurers will have an opportunity to offer protection from these new risks in the form of additional lines of insurance coverage.

This technology is coming and the inevitable changes it will bring are going to change the auto insurance industry and raise new and serious cyber security concerns.  The time for preparation is now.

Georgia City Sues County Over Dispute in Providing Emergency Services

Posted on: September 20th, 2016

By: A. Ali Sabzevari

A dispute between a Georgia city and county over the delivery of emergency services has cascaded into the courts. Recently, the City of Tifton filed suit against Tift County to prevent the County from providing extrication and rescue services within the City’s corporate limits. For over a decade, the City and County had jointly operated the Tifton Fire Department under an intergovernmental agreement until last year, when the County began its own fire department. The County wants to perform extrication and rescue services inside the corporate limits of Tifton. The suit, however, seeks an order preventing the County from doing so. More information on the lawsuit can be obtained here.

Attorneys at FMG are experienced in dealing with intergovernmental and service delivery strategy agreements. For more information, contact Dana K. Maine at 770.818.1408 or A. Ali Sabzevari at 770.303.8633.

Stop “IT”: Does Clowning Around Violate the Law?

Posted on: September 19th, 2016

By: Kevin Stone

Recently, like whack-a-mole, creepy clowns have been popping up throughout the country in unusual places, as reported here, here, and here.  In some instances, their presence is simply eerie—“A woman walking home late one night said she had seen a ‘large-figured’ clown waving at her from under a streetlight.”  Another saw a fully-dressed clown standing outside a laundromat staring at her.  In other instances, the reports graduate to downright disturbing—“Several children said that clowns were offering them money to follow them into the woods.”  The appearances began in South Carolina, but are spreading throughout the country.

Earlier this week, the clown influence reportedly spread to Georgia as reported here and here.  The LaGrange Police Department responded swiftly, warning, “if officers see this behavior, you’re going to have a conversation with them. And, if applicable, you may face criminal charges,” which begs the question, is it a crime to simply dress like a clown while engaged in otherwise lawful behavior?

Georgia’s “anti-mask statute” may shed light on the issue.  It provides that “[a] person is guilty of a misdemeanor when he wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property or upon the private property of another without the written permission of the owner or occupier of the property to do so.”  O.C.G.A. § 16-11-38.  Not surprisingly, the statute has several exceptions and permits people to wear masks for safety reasons, in sporting activities, and in theatrical productions, among others.  Notably, the exception for wearing a “traditional holiday costume” applies only “on the occasion of the holiday.”

In 1990, in State v. Miller, 260 Ga. 669, the Georgia Supreme Court upheld the 65-year-old anti-mask statute as constitutional.  Although the statute was passed in response to “a period of increased harassment, intimidation and violence against racial and religious minorities carried out by mask-wearing Klansmen and other ‘hate’ organizations,” its application should extend to other forms of harassment and intimidation—even in the form of clown costumes.  Thus, if an officer observes a clown (or Crazy Joe Davola in his Pagliacci getup), the officer may be justified in enforcing the law.  Officers should keep in mind, however, that there may be lawful reasons for donning clown costumes.  In any event, would-be clowns may want to think twice before planning their next caper, lest they end up behind bars (looking like a bozo).

Do Mandatory Arbitration Agreements with Concerted Action Waivers Violate Employee Rights?

Posted on: September 8th, 2016

By: Pamela Everett

The United States Court of Appeals for the 11th Circuit is poised to address whether Samsung Electronics America, Inc. violated Section 8(a)(1) of the NLRA by requiring its employees to sign an arbitration agreement waiving their rights to maintain class or collective work-related claims in any forum. The ruling in this case could force the Supreme Court to address this issue soon to resolve a widening circuit split.

On August 18, 2015, in the case of Samsung Electronics America, Inc. f/k/a Samsung Telecommunications America, LLC, Case No. 12-CA-145083, Administrative Law Judge Joel Biblowitz struck down a provision requiring employees and the company to arbitrate any class action lawsuit. However, he did not find that Samsung had unlawfully interrogated an employee regarding her protected activity. On February 3, 2016, the NLRB issued Order 363 NLRB No. 105, applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012). In its Order, the NLRB affirmed Judge Biblowitz’s findings that the Samsung violated Section 8(a)(1) by maintaining and enforcing an arbitration agreement that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. However, the NLRB reversed Judge Biblowitz’s ruling that Samsung had not unlawfully interrogated an employee about her protected, concerted activity. The appeal of this case was transferred from the 5th Circuit to the 11th Circuit on February 25, 2016.

Most recently, the Seventh Circuit, in Lewis v. Epic Sys. Corp., and the Ninth Circuit, in Morris v. Ernst & Young, adopted the NLRB’s position that mandatory arbitration agreements with concerted action waivers violate Sections 7 and 8 of the NLRA. However, the Fifth and Eighth Circuits have enforced mandatory arbitration agreements with class action waivers citing the Federal Arbitration Act. Murphy Oil, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015); Cellular Sales of Missouri, LLC v. NLRB, 824 F.3d 772 (8th Cir. 2016).

Stay tuned…

FDA’s Draft Guidance on When to Submit A 501(k) Bolsters Potential for Medical Device Manufacturers to Argue that State Tort Claims are Impliedly Preempted

Posted on: September 8th, 2016

By: Michael Bruyere and Amanda Hall

On August 8, 2016, the FDA issued draft guidance on “Deciding When to Submit a 510(k) for a Change to an Existing Device.” Current regulations provide that a manufacturer of a medical device must submit a premarket notification submission to the FDA at least 90 days before beginning to sell a device that has been changed or modified in any manner “that could significantly affect the safety or effectiveness of the device.” 21 C.F.R. § 807.81(a)(3). The draft guidance clarifies this language, providing more specific examples of when a 510(k) submission must be made.

The draft guidance, although it is not final nor binding, is significant not only because it should assist medical device manufacturers in determining when a 510(k) submission should be made. The increased clarity also bolsters the likelihood of a medical device manufacturer being able to successfully employ an implied preemption argument akin to those that have been successfully used with respect to generic drugs (see PLIVA v. Mensing, 564 U.S. 604 (2011) and Mutual Pharmaceutical Co. v. Bartlett, 133 S.Ct. 2466 (2013)) to defeat state law tort claims. In the generic drug context, a generic drug manufacturer cannot unilaterally change its label because it has the duty of sameness with respect to the brand drug. Accordingly, courts have concluded that state law claims against such manufacturers – typically alleging that the generic drug manufacturer was somehow negligent by failing to immediately provide a specific warning on its label – are impliedly preempted because the generic drug manufacturer could not immediately alter its label on its own without violating the law. As the Court said in Mensing, “[i]f the Manufacturers had independently changed their labels to satisfy their state-law duty, they would have violated federal law…Thus, it was impossible for the Manufacturers to comply with both their state-law duty to change the label and their federal law duty to keep the label the same.”

To date, attempts by medical device manufacturers to make an analogous argument, i.e. that they could not immediately change their device to make it safer (thus complying with a duty pursuant to state tort law) because such a change would require submitting a new 510(k) to the FDA and waiting 90 days (thus complying with an obligation under federal law), have been unsuccessful. By clarifying instances in which a 510(k) must be submitted, the draft guidance increases the possibility of medical device manufacturers successfully defending against state tort claims on this basis.