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Written by: Ashley Petefish

Healthcare providers, practices, and companies today have a multitude of ways to reach consumers and patients. A provider can utilize Facebook, Instagram, Twitter, and other social media websites to target advertisements, post information about their practice, and attract new patients. This mass sharing of information, however, provides trademark infringers a prime opportunity to infringe on your trademark rights.

Start-up businesses and consumer products are not the only companies capitalizing on the social media boom. For example, Dr. Howard Luks, an orthopedic surgeon and sports medicine specialist in New York, has an active presence on all social media channels. Dr. Luks uploads videos to YouTube to market and attract patients. In one video, Luks explains why meniscal tears are so common and whether surgery is always necessary for this type of injury. This video has been viewed almost 200,000 times. Dr. Luks is a prime example of a physician utilizing social media to market his medical practice. However, with social media marketing, healthcare providers, practices, and businesses need to ensure they protect their trademark rights.

What exactly are my “trademark rights”?

A trademark is a word, symbol, or phrase used to identify a particular manufacturer or seller’s products and distinguish them from the products of another. 15 U.S.C. § 1127. When such marks are used to identify services rather than products, they are called service marks, although they are generally treated just the same as trademarks. A trademark identifies the source of products or services and distinguishes them from the products or services of others. Trademark infringement occurs when there is confusion as to the source of products or services. Trademark rights are acquired through use, and owners can have common law rights even without a registration.

Where does social media come into play?

If a word, phrase, or design in a social media post is confusingly similar to another’s trademark and is used to promote similar or related products or services, the trademark owner having prior rights can object to the use (whether its mark is registered or not). This includes use of words and phrases in hashtags, captions, stories, and other platform-specific features. In healthcare, the importance of protecting your mark not only relates to your business or practice, but it also affects your professional reputation.

An interesting tale of a physician and his trademark.

In 2015, Dr. Draion M. Burch, known to patients as “Dr. Drai”, applied for the “Dr. Drai” trademark and requested protection for “educational and entertainment services,” with products to include books, audiobooks, webinars, podcasts and various other media related to his medical practice. Dr. Drai is a Pennsylvania-based gynecologist and media personality. On his website, he touts himself as “One of America’s Top Women’s Health Experts.” Surprisingly, Dr. Dre, the Grammy award-winning rapper, objected to the physician’s registration of the mark stating there was a likelihood of confusion.

  Earlier this year, the USPTO’s Trademark Trial and Appeal Board (TTAB) sided with Dr. Drai, writing, “the issue is not whether purchasers would confuse the goods or services but whether there is a likelihood of confusion as to the source of the goods or services.” The Board found “no evidence of record” showing that “consumers would likely believe the parties’ goods and services would emanate from the same source” and dismissed Dr. Dre’s opposition to the trademark application. Dr. Drai not only won his right to utilize his mark to advertise his brand, but Dr. Drai is now protected from future infringers in the medical field.

How do I protect my brand?

To maximize protection of your brand, you should consider registering your trademarks with the U.S. Patent and Trademark Office. This protects your business and gives you an edge in legal situations. If your business or medical practice utilizes social media for marketing, to interact with patients or customers, or to reach consumers, you may have certain trademark rights that need protection. Additionally, if you have acquired usage of a word or phrase used to describe your business or practice, you likely would benefit from registering that word or phrase as a trademark. To determine if you have trademark rights that should be protected, or if you have questions about the best way to protect your company or practice’s brand, contact the Milligan Lawless attorney with whom you usually work.

      Earlier this year, the EEOC’s Phoenix District Office filed suit against Community Care Health Network, Inc., doing business as Matrix Medical Network in Arizona, alleging Matrix violated federal law. The EEOC’s suit alleges Matrix rescinded a job offer to Patricia Pogue after discovering Ms. Pogue was pregnant.

      Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, the (“PDA”), prohibits employment discrimination based on sex, including pregnancy. Acts of pregnancy discrimination may include:

  • Firing a pregnant employee;
  • Laying off a pregnant employee;
  • Refusing to hire a pregnant employee;
  • Harassing a pregnant employee;
  • Refusing to provide accommodations for a pregnant employee;
  • Demoting a pregnant employee;
  • Forcing a pregnant employee to change positions or take time off.

     The PDA, which applies to employers with 15 or more employees, protects employees who go on leave due to pregnancy, childbirth, or a related medical condition. Employers must hold an employee’s job open on the same basis as it does for other employees who go on leave.

     According to the EEOC’s suit, Matrix offered Ms. Pogue a position as credentialing manager. After Ms. Pogue accepted the offer, she informed Matrix she was pregnant and would need maternity leave. Approximately one week later, Matrix asked Ms. Pogue why she did not disclose her pregnancy during the job interview. Matrix then rescinded the job offer. 

Written by: Ashley Petefish

     The EEOC’s suit against Matrix seeks back wages, compensatory, and punitive damages for Ms. Pogue. Further, the EEOC is seeking a permanent injunction enjoining Matrix from engaging in any discriminatory practices based on a person’s sex, including pregnancy.

     The EEOC has focused in on PDA discrimination cases during the past couple of years. The EEOC receives, on average, more than 3,500 charges of pregnancy discrimination each year. In 2017, the EEOC settled multiple pregnancy discrimination cases for a total amount of $15 million in monetary damages.

     All employers, including medical practices, should institute and carry out policies and practices to prevent pregnancy discrimination in the workplace. Employers that would like more information about pregnancy discrimination, including advice on creating and implementing effective anti-discrimination policies, may contact the attorneys at Milligan Lawless for assistance.

Written by: Kylie Mote

    Effective January 1, 2019, Arizona-based small employers will be required to provide continuation of employer-sponsored health plan benefits to qualifying former employees and their covered dependents. Currently, employers who employ at least 20 employees (as calculated by determining the number of employees employed on more than fifty percent of the employer’s typical business days in the previous calendar year) are required to offer continuing group coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA or “federal COBRA”). Arizona’s new law, referred to as a “mini-COBRA,” will apply to employers with at least one but not more than 20 employees during the preceding calendar year.

              Under the law, former employees who elect to continue coverage will receive benefits at the group cost, including the employer’s contribution and administrative fee (capped at five percent of the premium). To be eligible for continued coverage under the new law, employees and their covered dependents must 1) be enrolled in a group medical insurance plan for a minimum of three months, 2) be ineligible for Medicare coverage, and 3) experience a “Qualifying Event” thereafter losing coverage.  The law defines a “Qualifying Event” as follows: voluntary or involuntary termination of employment for a reason other than gross misconduct or reduction of hours required to quality for coverage;divorce or separation from the employee; death of the employee; the employee becomes eligible for Medicare coverage; a dependent child ceases to be a dependent child under the insurance plan; a retired former employee and his or her dependents lose coverage within one year before or after the employer files for bankruptcy.  

            Within 30 days of the occurrence of a Qualifying Event, mandated employers must provide written notification to an employee of his or her right to continue coverage(though the law considers a written notice timely if it is postmarked within 44 days of the Qualifying Event and mailed to the employee’s last known address).In the event that a covered dependent resides at a different address than the employee, the employer must deliver a separate written notice to the dependent. The written notice must inform the employee and his or her dependents of their right to continue coverage, the amount of the full cost of coverage (including the employer’s administrative fee), the process and deadlines for electing continuation of coverage, the dates and times for making payments, and the consequence for failure to pay in a timely manner (i.e., loss of coverage). For those employees and/or dependents receiving mini-COBRA coverage, employers are also required to provide at least 30 days advance notice of any changes to coverage (e.g., rates, plan, benefits,etc.).

            To continue coverage, employees must provide written notification to the employer within 60 days of the date of the employer’s notice. After electing coverage, employees have 45 days to submit the initial premium to the employer. Mini-COBRA coverage terminates upon the earliest of the following events: 18 months following the commencement of coverage; the employee’s failure to timely pay premiums; the date on which the employee or a covered dependent becomes eligible for coverage under Medicare, Medicaid, or any other health benefit plan (with respect only to that person); the date on which an employer terminates coverage under the health benefit plan for all employees (the employee and covered dependents are eligible to participate in a replacement plan); or the date a dependent child would otherwise lose coverage under the terms of the health benefit plan due to age (with respect only to that dependent child). In the event that a covered dependent is deemed disabled at the time of the Qualifying Event, the dependent may be eligible for extended coverage.

Mini-COBRA Broken Down

Continued Coverage: Employees and their covered dependents receive continued employer-sponsored health plan benefits at the group cost.

Mandated Employers: Employers with at least one but no more than 20 employees during the preceding calendar year.

Eligible Employees: Employees must be covered under a group medical insurance plan for a minimum of three months; ineligible for Medicare coverage; experience a Qualifying Event. 

Notification Requirements: Employer’s notice required within 30 days of the Qualifying Event. Separate notice required if a covered dependent resides at a different address.

Employer’s Administrative Fee: Capped at five percent.

Election of Coverage: Employees have 60 days from the date of employer’s notice to submit written notice of their desire to continue coverage. Initial premium is due within 45 days of electing coverage.

How Long Does Coverage Last: Generally 18 months, though coverage time may vary under certain circumstances.

 Employers who would like more information about Arizona’s mini-COBRA law are encouraged to contact the attorneys at Milligan Lawless for assistance.

If you are a member or manager of an Arizona limited liability company (or professional limited liability company), your obligations may be significantly expanded under a law that begins to take effect as early as August of 2019.  This article summarizes the impact of the new law relating to fiduciary duties of members and managers, and provides some thoughts as to how you can understand and manage those obligations.

Fiduciary Duties Defined

A fiduciary, in simple terms, is a person who owes to another person certain duties, such as good faith, trust, special confidence, and candor.  In the business context, fiduciary duties help ensure that each officer, director or manager of a business is acting in a manner that is consistent with the company’s objectives and the interests of other owners.  Under Arizona law directors and officers of corporations, and members of a partnership have long been deemed to owe fiduciary duties to the corporation or partnership.  Until relatively recently, it had been unclear whether managers or members of Arizona LLCs owe fiduciary duties to the company and the other members.  There had not been a statute addressing the issue, and Arizona case law had generally been interpreted so as not to impose fiduciary duties on LLC members unless the Operating Agreements imposes such duties on the members.

Imposition of Fiduciary Duties on Members or Managers of LLCs

On April 10, 2018, Arizona Governor Ducey signed the Arizona Limited Liability Company Act (ALLCA).  ALLCA will apply to all Arizona LLCs formed after August 31, 2019; on August 31, 2020, Arizona’s current LLC law will expire, and ALLCA will apply to all Arizona LLCs, regardless of their date of formation.  One notable change brought about by ALLCA is the imposition of fiduciary duties on members and managers of Arizona LLCs.  Under ALLCA, fiduciary duties will be imposed on members and managers if: (1) the LLC does not have a written Operating Agreement, or (2) if the LLC has an Operating Agreement that is silent on the subject of fiduciary duties.

For Members in a Member-Managed LLC

Under ALLCA, members of a member-managed LLC will owe a duty of loyalty and a duty of care to the LLC and to the other members; in addition, the members will be obligated to act in a manner consistent with a contractual obligation of good faith and fair dealing.[1]  See A.R.S §29-3409.

For Managers in a Manager-Managed LLC

Similarly, a manager of a manager-managed LLC will owe the LLC and the members essentially the same duties of loyalty and care as the members in member-managed LLCs owe to the company and to one another.  A manager must also discharge his or her duties and obligations under the ALLCA in a manner that is consistent with the obligation of good faith and fair dealing.  In a manager-managed LLC, the members will not owe fiduciary duties to one another solely because they are members of the LLC; the existence and scope of any fiduciary duties of a member in a manager-managed LLC will depend on the extent to which the member controls or participates in the management of the company.

Eliminating or Altering Fiduciary Duties in the Operating Agreement

An Arizona LLC can depart from certain ALLCA provisions in the LLC’s Operating Agreement, and with the exception of a few items, the LLC’s Operating Agreement will supersede the provisions of the ALLCA.  A.R.S. §29-3105; See A.R.S. §29-3409(F) and A.R.S. §29-3409(N).  This means that certain of the duties imposed under the statute can be expanded, limited or eliminated by the Operating Agreement.  The Operating Agreement cannot, however, eliminate the managers’ or members’ contractual obligation of good faith and fair dealing, or the duty to refrain from willful or intentional misconduct.

Written By: Miranda A. Preston

To ensure that any fiduciary duties imposed on you as a member or manager of an Arizona LLC are aligned with your interests as a member or manager, you should consider whether you want to be bound by the provisions of ALLCA relating to fiduciary duties.  If you want to modify or eliminate those duties, to the extent permissible under ALLCA, please contact us or another legal adviser.

This article is made available for informational purposes only and is not for the purpose of providing legal advice.  You should contact your attorney to obtain advice with respect to any particular issue or problem.

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[1] Arizona law recognizes an implied covenant of good faith and fair dealing in every contract; this covenant obligates parties to a contract to act in good faith, and in a manner that is consistent with fair dealing.

 

 

 

 

 

 

Arizona has recently passed new law[1], and issued new regulations[2], governing physician duties and requirements in prescribing opioid analgesics or benzodiazepines.

The law mandates that, beginning October 1, 2017, physicians must consult a prescription monitoring program (PMP) prior to prescribing an opioid analgesics or benzodiazepine in schedules II-IV.

Under the new regulations, Arizona health care institutions must establish and implement more comprehensive plans and procedures for prescribing or ordering an opioid or administering an opioid.

Physicians who prescribe opioids, and health care institutions licensed by Arizona’s Department of Health Services, should be aware of this new law, and new rule. If you have any questions regarding these new laws, or would like assistance with updating your policies and procedures to conform to these requirements, please feel free to contact Milligan Lawless.

 

[1] SB 1283 (2016), signed by Arizona Governor Doug Ducey in 2016 amended A. R. S. § 36-2606.

[2] 9 AZ Adc. Ch.10, Ariz. Admin. Code R9-10-120.

 

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