Law Firm News

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Law Firm News

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Nixon & Peabody, LLP

California Supreme Court Prohibits Recording Telephone Calls Made To or Received From California Without First Informing All Parties That the Conversation Is Being RecordedCalifornia Supreme Court Prohibits Recording Telephone Calls Made To or Received From California Without First Informing All Parties That the Conversation Is Being Recorded
Under a recent California Supreme Court ruling, those who record conversations with California residents without their knowledge will be subject to civil liability. If a business makes a routine practice of recording its calls with California customers without notice, it may be an easy target for a class action lawsuit. Fortunately, there is an easy solution to this problem: make it standard operating procedure to notify all callers whenever you intend to make a recording.

07-25-2006

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Manatt, Phelps & Phillips, LLP

The California Supreme Court Rules That Private Hospital Peer Review is an "Official Proceeding" Subject to Anti-SLAPP Protection
A unanimous California Supreme Court has held that California's anti-SLAPP law, California Code of Civil Procedure (“CCP”) Section 425.16, (which provides for prompt dismissal of meritless lawsuits designed to chill free speech) applies to private hospital peer review proceedings because they are “official proceeding[s] authorized by law” under that statute. Kibler v Northern Inyo Local Hospital District, ___ Cal. 4th ___, July 20, 2006; 2006 WL 2022176 (Cal.).

The Kibler decision is great news for all California acute care hospitals. By recognizing private hospital peer review as an “official proceeding authorized by law,” the Court applied the strongest and most sweeping legal ground for the application of California's anti-SLAPP statute, specifically CCP Section 425.16(e)(2). This ruling means that no California hospital needs to demonstrate that a particular peer review was conducted primarily in furtherance of free speech activities on an issue of public importance. The “official proceedings” label makes such a case-by-case determination unnecessary. Under Kibler, hospital peer review proceedings – and the many communications that occur in anticipation of such proceedings – have the same anti-SLAPP protection as statements made in court pleadings, or disparaging comments made in open court, when they are attacked in improper defamation actions.

This is a remarkably positive ruling. Not only are most hospitals private entities – rather than government agencies or public/state-operated bodies whose proceedings obviously are “official” – but in 1979 the Supreme Court had held that private hospitals were not entitled to invoke the absolute litigation privilege for official proceedings under statutory language that (at the time) was identical to the “official proceeding” language that now appears in the anti-SLAPP statute. See Hackethal v. Weissbein, 24 Cal. 3d 55, 58-60 (1979). (The Hackethal decision subsequently was superseded by a statutory amendment.)

The Kibler Court cited the amicus curiae brief filed on behalf of hospital system Catholic Healthcare West and the hospitals of the Regents of the University of California for the key policy point that denying anti-SLAPP protection would “further discourage” physicians from stepping up and conducting voluntary, uncompensated review of their colleagues. Similarly, the Court adopted another of the CHW/Regents’ principal legal arguments; namely, that since hospital board decisions in peer review cases are governed by the administrative mandamus statute (CCP Section 1094.5(d)), such proceedings must be considered “official,” even though conducted by private hospitals. The Court rejected contrary arguments by amicus curiae California Medical Association on this and other points.

The Kibler decision should shut down completely premature damages actions by physicians against hospitals, peer review bodies, and individual peer reviewers for defamation, interference, and other related torts – and thereby eliminate tremendous uncertainty, exposure, and expense. (Hospitals frequently indemnify and defend individually named defendant physicians for non-malicious peer review activities.) Doctors who file such complaints despite Kibler will now face winning anti-SLAPP motions, and also will have to pay the defendant hospitals’ statutorily mandated prevailing party attorneys’ fees. The Kibler decision also will encourage the best and brightest physicians to step forward and perform the difficult task of reviewing their peers, without fear of reprisal in the form of improper lawsuits that seek to chill the peer review process.

07-25-2006

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Hunton & Williams, LLP

OFCCP Issues Final Guidance On Compensation Analyses For Federal Contractors
On June 16, 2006, the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) published two notices related to systemic compensation discrimination, which modify and finalize the proposed compensation guidance published in November of 2004.

07-25-2006

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Haynes & Boone, LLP

Caution -- NLRB Nixes Broad Mandatory Arbitration Programs
On June 8, 2006, the National Labor Relations Board (the "Board") ruled that a non-union employer violates Section 7 of the National Labor Relations Act (the "NLRA" or "Act") if it implements a mandatory arbitration program for its employees that implicitly restricts employees' rights under the Act, even where the policy does not on its face explicitly apply to rights under the NLRA.

07-25-2006

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Fenwick & West, LLP

Supreme Court of California Holds Proposition 64 Applicable to Pending Unfair Competition Law Cases
In November 2004, California voters passed Proposition 64 to purge the abusive use of private "representative" actions under California's Unfair Competition Law ("UCL") and False Advertising Law ("FAL") (respectively, California Business & Professions Code Sections 17200 and 17500, et seq.).

07-25-2006

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Bricker & Eckler LLP

Employers Beware: Much More Than A Minimum Wage Increase
A proposed amendment to Ohio's Constitution would not only raise Ohio's minimum wage to $6.85 per hour, but would also require nearly all public and private employers to make available employee wage and certain personnel information to any employee or person acting on behalf of an employee at no charge; and it would impose new and potentially costly record-keeping requirements on all employers.

07-25-2006

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Bingham McCutchen, LLP

Securities and Exchange Commission Issues Final Interpretive Guidance Regarding Soft Dollar Arrangements
On July 18, 2006, the Securities and Exchange Commission (the "Commission") published final interpretive guidance (the "Interpretive Release") regarding the "soft dollar" safe harbor of Section 28(e) of the Securities Exchange Act of 1934 ("Section 28(e)"). The stated goal of the Interpretive Release is to clarify the scope of the safe harbor in light of evolving technologies and industry practices.

07-25-2006

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