Making the Case for a CO2 Charge on a Snowy Day in MA


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What if you could receive an annual check from Massachusetts for simply reducing the amount of fossil fuel you use? On February 4, 2015, Prince Lobel hosted a panel discussion with the New England Women in Energy and the Environment (NEWIEE) to discuss this question and the proposed legislation by state Senator Michael Barrett, which would do exactly that. Sen. Barrett was joined on the panel by Tufts University Professor of Economics Gilbert Metcalf, and Wayne Davis of Harvest Power, Inc. The panel was moderated by Zaurie Zimmerman of Business Leaders for Climate Action. The timely topic drew a great crowd despite the winter weather and the Patriots’ Duck Boat parade earlier that day.

What is Carbon Pricing?

Under Senator Barrett’s proposed legislation, An Act Combating Climate Change – SD285, a “carbon charge” would be added to the price of each coal, petroleum and natural gas fuel in proportion to the CO2 thrown off as a byproduct. The CO2 charge, which is endorsed by Prof. Metcalf and Mr. Davis, is not a tax, but instead is “revenue neutral.” The goal is not to generate revenue, but to encourage individuals to be more thoughtful about their use of fossil fuels. The Act provides that each state resident would receive an equal share of the total CO2 charges collected in an annual or quarterly check. Households could then spend some of this rebate money improving the energy efficiency of their homes and vehicles, and using cleaner, renewable energy instead of fossil fuels. A sliding price scale means the CO2 charge can be lowered by switching from coal to oil, from oil to natural gas, or, ideally, natural gas to a renewable energy source like solar or wind power.  Massachusetts businesses and other entities would receive a rebate in proportion to their share of total employment in the state, though additional rebates would be provided to businesses that are energy intensive and face significant competition outside of Massachusetts.

What are the Impacts?

The most important impact is that the Act would cut CO2 emissions more substantially than any other existing or proposed regulatory policy. In addition, low and moderate income households would get back at least as much as they pay for higher costing fossil fuels. The Act would save billions of dollars spent on imported fossil fuels, leaving more money for creating and expanding Massachusetts businesses and increasing employment.

Why Massachusetts?

Massachusetts state law requires that we cut greenhouse gas emissions (primarily CO2) to 25% below 1990 levels by 2020 and to at least 80% below 1990 levels by 2050. This will require a dramatic shift from fossil fuels to clean energy such as solar and wind, while greatly improving the efficiency of our energy use. Carbon pricing has already by tried and tested – and proven to work – in British Columbia since 2008. The money from carbon pricing has gone back to the public, repeal efforts have failed, and the system is popular. With lessons learned from British Columbia, the panelists believe that Massachusetts is ripe for implementing the carbon pricing system.

Barry C.Burke
This blog was prepared by Julie Barry and Cailin Burke. For more information, see the attached materials from the event below, or contact Julie, a partner in the firm’s Renewable Energy Practice Group, at, or 617 456 8090.

Carbon Tax Panel Discussion materials

The NLRB Protects Non-Union Employees’ Ability to Complain About Working Conditions Through Electronic Mail



The National Labor Relations Board (NLRB) has continued its aggressive posture in matters involving employees’ (ability to communicate with one another in the workplace, including the virtual workplace of the cyber world). In a December 2014 case entitled, Purple Communications, Inc., the NLRB overturned a 2007 decision, in which it had held that an employer could “lawfully bar non-work-related use of its [email] system” even if the employees were using the email system for union organizing or to engage in discussions concerning wages, benefits or other workplace issues. In Purple Communications, the NLRB ruled that employees who already have access to an employer’s email system and use the system in the course of their work, have the right to use the system to communicate about union organizing and/or about workplace and employment conditions generally. These communications are protected under Section 7 of the NLRA, which gives all employees (union and non-union) the right, among other things, to discuss the terms and conditions of their employment or organize a union with their co-workers.

Although recognizing the right of employees to use their employer’s email systems to discuss or complain about matters of mutual concern, the NLRB also recognized that this right had to be balanced against an employer’s legitimate interest in efficiently managing its business. The NLRB noted that:

  • Its ruling only applies to employees who already have access to their employer’s email system for work purposes.
  • Employees can only use the email system to discuss union organizing and workplace complaints or issues with their coworkers on non-working time.
  • There might be circumstances where an employer is permitted to “apply uniform and consistently enforced controls over their email systems to the extent that such controls are necessary to maintain production and discipline.”
  • The ruling does not apply to a third party’s use of an employer’s email system, (i.e., an employer can still limit union access to its email system).
  • An employer can monitor employees’ email use to enforce a policy that employees cannot use the system to assert their Section 7 rights during working time. An employer can also monitor its email systems for other legitimate business reasons, such as productivity, the prevention of harassment among coworkers and other activities that could expose an employer to liability.

Although the NLRB states that its ruling in Purple Communications only applies to email systems, its decision leaves no doubt that it would expand its ruling to other forms or electronic communication if the opportunity is presented. Accordingly, non-union and union employers alike should review their policies to ensure that they do not contain prohibitions or restrictions on the use of email and other electronic communication systems that are contrary to NLRB’s ruling in Purple Communications.

If you have any questions about the information presented here, need assistance with reviewing and updating policies, or would like to learn more about how Prince Lobel can address any of your employment law concerns, please contact Claudia Centomini, the author of this Alert at 617 456 8064 or, or click here to contact any of the attorneys in the firm’s Employment Law Practice Group.

Must Massachusetts Employers Pay Employees for Snow Days?


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With an unprecedented amount of snow falling in Massachusetts over the past three weeks, businesses have been forced to close early or not open for business on numerous occasions. Private employers want to know if they are obligated to pay employees during these wintry storms. The answer depends on whether (i) the employee is paid on an hourly basis and/or eligible for overtime after working 40 hours in a work week (non-exempt employee); or (ii) the employee is paid on a salary basis and is exempt from any overtime pay requirements (exempt employee). Employers might also have a snow day policy that offers additional benefits to their employees but those are strictly voluntary.

Exempt Employees

When the office is open and an exempt employee does not come to work because of poor driving conditions or limited public transportation, the employer can deduct a full day’s pay from the employee’s weekly salary. In lieu of deducting one day’s pay, U.S. Department of Labor (DOL) does allow an employer the option of requiring the exempt employee to take accrued vacation or other leave time, or debit the time from a leave bank. If an exempt employee has no leave time available, the employer does not have to pay the employee for not reporting to work for one or more full days during the work week.

The answer differs when the office closes early. An employer cannot deduct any pay from the exempt employee’s weekly salary when the employee has worked only part of the workday. Nonetheless, DOL does allow an employer to direct an exempt employee to use the employee’s leave time for a partial day’s absence as long as the employee receives the employee’s entire weekly salary. This rule also applies when the exempt employee has no accrued leave. The employer must still pay the employee’s guaranteed salary although the employer can deduct the leave time at a later date once the exempt employee accrues the leave time.

Non-Exempt Employees

An employer only has to pay a non-exempt employee for time worked. An employer has the option of creating a policy or practice that requires the non-exempt employee to use his/her accrued leave or vacation time when the office is closed.

Massachusetts, however, has a reporting pay requirement. When a non-exempt employee, who is scheduled to work three or more hours, reports to work and the employer sends the employee home due to inclement weather, the employer must pay the non-exempt employee for three hours at the basic minimum wage rate. (This rule does not apply to organizations granted status as charitable organizations under the Internal Revenue Code.) Issues will arise when it is unclear whether the employer notified the non-exempt employee before the non-exempt employee reported to work. Thus, it is important for an employer to communicate office closures to employees in a timely manner.


If you have any questions about the information presented here, need assistance with reviewing policies, or would like to learn more about how Prince Lobel can address any of your employment law concerns, please contact Claudia Centomini, the author of this Blog is at 617 456 8064 or, or click here to contact any of the attorneys in the firm’s Employment Law Practice Group.  

New Areas Targeted in OIG’s FY 2015 Work Plan


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The Office of the Inspector General (OIG) recently released its Work Plan for Fiscal Year 2015. There are a number of new items on the Work Plan which affect hospitals, nursing facilities, community health centers, and independent clinical laboratories. Set forth below is a summary of some of the new items which may be of interest to our health care clients.

 Billing and Payments

Review of Hospital Controls over the Reporting of Wage Data Used to Calculate Medicare Payments

Hospitals are required to report accurate wage data to the Centers for Medicare and Medicaid Services (CMS) on an annual basis. The data is used to calculate wage indexes for Medicare payments. Prior work by the OIG revealed hundreds of millions of dollars of incorrectly reported wage data.

Quality of Care and Safety

Expansion of Post-Acute Care Quality of Care and Safety Review to Include Adverse Events for Medicare Beneficiaries in Long-Term Care Hospitals

The OIG intends to estimate the national incidence of adverse events and temporary harm experienced by Medicare beneficiaries in long-term care hospitals, identify the factors that contribute to these events, determine the extent to which these events were preventable, and estimate the associated costs to the Medicare program.

Review of Hospital Compliance with Electronic Health Record System Contingency Plans

The security rule provisions of the Health Insurance Portability and Accountability Act (HIPAA) applicable to electronic health records require covered entities to have a contingency plan that establishes policies and procedures for responding to an emergency or other occurrence that damages systems that contain protected health information. The OIG intends to compare hospitals’ contingency plans with government and industry recommended practices.

Nursing Facilities and Group Homes

Investigation of Medicaid Beneficiary Emergency Transfers from Group Homes and Nursing Facilities to Hospital Emergency Rooms

The OIG is concerned that high occurrences of emergency transfers from nursing facilities or group homes to hospitals could be indicative of poor quality. Prior work by the OIG examining transfers from nursing facilities to hospital emergency departments raised concerns about the quality of care provided in the nursing facilities.

Other Providers

Review of Independent Clinical Laboratory Billings and Payments

The OIG intends to examine whether independent clinical laboratories are in compliance with certain Medicare billing requirements. Based on the results of its review, the OIG will identify clinical laboratories that regularly submit improper claims and will recommend that recoveries of overpayments be made. Prior OIG audits identified independent clinical laboratories as an area at risk for noncompliance with Medicare billing requirements.

Community Health Centers – Compliance with Grant Requirements of the Affordable Care Act

The OIG will review whether community health centers that receive grants under the Affordable Care Act are in compliance with federal laws and regulations governing the receipt of such funds, including whether the expenditures are allowable and the accounting systems that assess and account for program income are adequate.



If you have questions about the OIG’s 2015 Work Plan, or any concerns regarding your organization’s compliance with the items in the Plan, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice Group and the author of this alert. You can reach Rochelle at 617 456 8036 or

Massachusetts Voters Pass Question 4 Requiring All Employers to Provide Sick-Time Leave to Employees


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On November 4, 2014, Massachusetts voters approved a ballot measure requiring employers to provide paid sick leave.  The measure, which goes into effect on July 1, 2015, requires all Massachusetts employers to provide up to forty hours of sick-time leave each calendar year to every employee regardless of whether they are a full-time, part-time, or temporary employee.  For employers with ten or fewer employees, that leave may be unpaid.

What Can Sick-Time Leave be Used For

The statute allows employees to use their earned sick-time for any of the following reasons:

  • Care for the employee’s physical or mental health;
  • Care for the physical or mental health of the employee’s child, spouse, parent, or spouse’s parent;
  • Attending medical appointments for the employee or the employee’s child, spouse, parent, or spouse’s parent; or
  • Addressing the psychological, physical, or legal effects of domestic violence.

Employers may require the employee to obtain a healthcare provider’s certification of need if the leave will last longer than twenty-four consecutive hours.

How Employees Accrue Sick-Time Leave

Employees will begin accruing sick-time leave on July 1, 2015, at a rate of one hour for every thirty hours worked.  New employees, hired after July 1, 2015, will begin accruing sick-time leave on their first day of work, but are prohibited from using any accrued leave until after their ninetieth day of work.  Employees can carry over up to 40 hours of unused sick-time to the next calendar year, but are not entitled to use more than 40 hours in one calendar year.  Additionally, employers are not required to compensate employees for unused accrued sick-time hours at the end of the calendar year or the separation of employment.

HR Concerns

All employers should immediately examine their existing policies to determine whether they are in compliance with the new law.

-Nick Soivilien


If you have any questions on how to bring your employment policies and practices up to date, or have any employment law concerns, please contact Nicholas Soivilien, the author of this Alert at 617 456 8097 or, or Daniel S. Tarlow, chair of the firm’s Employment Practice Group at 617 456 8013 or

How to Use Stock Images (the Right Way)

Before becoming Prince Lobel’s Media Group Admin, I was a newspaper reporter in Florida. When I wasn’t writing or tweeting or figuring out how to smuggle Snickers from my editor’s candy bowl, I was taking photos to go along with my stories. But every now and then I would come across a photo from a source’s Facebook page that I would want to use in print. I knew there were legal ramifications of taking photos from Facebook, Twitter, Google Images, and so on, but I didn’t quite understand the rules. I was just like:


For all the other journo folk out there who would love to have some answers, Prince Lobel media lawyer Asya Calixto has written a neat, nifty (and free!) guide to using stock images. This will give reporters/editors/photo directors an overview of what rights and licenses are required to use images from social media sites as well as major stock houses like Getty Images and ThinkStock. It also covers limitations on use and required attribution for each origin.

Download the guide, save it to your desktop, show your colleagues and maybe your Grandma. And when in doubt, call your lawyers.

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– Sabrina Rocco,

Neither a Sword nor a Shield? The Massachusetts Usury Statute and Default Loan Provisions


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Default interest rates and late fees are common provisions in many loan agreements. When reasonable in scope, they serve as a useful means of ensuring that a creditor can recover for the sort of incidental damages it suffers when a debtor defaults on the terms of its loan – such as administrative expenses and other costs above and beyond the underlying interest rate. But like any other contractual provision, default provisions are only useful to the extent courts are willing to enforce them, and if a default rate is too high, it is liable to be struck down. How does one tell if a default rate is too high? The answer is unclear in Massachusetts. The problem has to do with the uncertain relationship between the Massachusetts Usury Statute, M.G.L. c. 271, § 49, and principles of contract law.

At the very least, default provisions have to comply with the Usury Statute. That statute makes it a criminal offense to charge “greater than twenty per centum per annum,” and it also gives courts the discretion to void contractual provisions which exceed that amount. The Statute has been found to apply to default provisions, and at first glance, it would appear to provide debtors with significant protection against exorbitant default rates. Section 49(d) of the Usury Statute, however, goes on to state that creditors do not have to comply with the 20% cap so long as they notify the attorney general of their intent to charge usurious interest rates and comply with certain record keeping requirements. As a result, so long as creditors take fairly minimal precautions, the Usury Statute is unlikely to place much of a limitation on what default provisions they can include in their loan agreements.

But if a creditor notifies the attorney general pursuant to Section 49(d) of its intent to charge a usurious default interest rate, is it therefore free to charge whatever it wants? The Usury Statute, after all, is not the only grounds on which a default provision can be struck down. Courts, for example, have held that default interest rates and late fees constitute “liquidated damages” provisions, and not all liquidated damages provisions are enforceable. Rather, a liquidated damages provision will be held void unless (1) “at the time of contracting . . . actual damages flowing from a breach were difficult to ascertain,” and (2) “the sum agreed on as liquidated damages represents a reasonable forecast of damages expected to occur in the event of a breach.” NPS, LLC v. Minihane, 451 Mass. 417, 420 (2008) (internal quotation marks omitted). Otherwise, a liquidated damages provision will be found to be an unenforceable “penalty.” So default provisions would appear to be vulnerable if they do not reflect a reasonable forecast of uncertain harm, and plenty of default provisions have been struck down on precisely that basis. See, e.g., De Cordova v. Weeks, 246 Mass. 100, 104 (1923) (36% default interest rate found unenforceable as a penalty); SMS Fin. V, LLC v. Conti, 68 Mass. App. Ct. 738, 751 (Mass. App. Ct. 2007) (“A provision calling for double a recovery on a promissory note in a principal amount that exceeded $300,000” was unenforceable); Fleet Bank of Mass. N.A. v. One-O-Six Realty, Inc., Civ. A. No. 94-3392-G, 1995 WL 389862, at *3 (Mass. Super. Jan. 17, 1995) (Mass. Super. Jan. 31, 1995) (finding that “a 5% [monthly] late charge on a multi-million dollar balloon payment at maturity” was unenforceable).

The question then becomes whether compliance with the Usury Statute somehow immunizes a creditor from review under a “penalty” analysis. Here, the law gets unclear. On the one hand, at least one federal district court has suggested that, so long as the attorney general is notified, creditors have a defense against any challenge to a default rate. RFF Family P’ship, LP v. Link Dev., LLC, 932 F. Supp. 2d 213, 224 (D. Mass. 2013). This makes some intuitive sense. After all, it would be strange if the legislature expressly created a procedure whereby creditors could charge interest rates above 20% only to leave those rates subject to invalidation on some other basis.

By contrast, in In re 201 Forest Street LLC, 409 B.R. 543 (Bankr. D. Mass. 2009), the Bankruptcy Court determined that compliance with Section 49(d) did not prevent a court from reviewing a default provision under the liquidated damages framework. While the Court did not provide a detailed explanation for its holding, there are certainly arguments that could be made. For one, Section 49(d), according to its plain text, creates an exception only to the Usury Statute itself – it says nothing regarding other non-statutory defenses. Furthermore, reading Section 49(d) as abrogating a liquidated damages defense would be illogical from a policy perspective. The Usury Statute and the liquidated damages analysis, after all, address distinct concerns – the former seeks to regulate rates which are simply too high whereas the latter is concerned more with ensuring that default provisions are proportional to the likely foreseeable harm. Moreover, if Section 49(d) really did allow creditors to impose what would otherwise constitute unlawful “penalties,” the Usury Statute would create rather bizarre incentives. Creditors who charged interest rates above 20% would be granted immunity whereas creditors who charged less could conceivably be subject to higher judicial scrutiny because they fall outside of the Usury Statute’s scope. Creditors, therefore, might be encouraged to charge higher interest rates – precisely what the Usury Statute is intended to curb.

Unfortunately, Massachusetts state courts have provided little guidance regarding the interplay between the Usury Statute and contract law. The closest the SJC has come was in Begelfer v. Najarian, 381 Mass. 177 (1980). In Begelfer, the creditor charged a default interest rate in excess of 20%, and because it failed to first inform the attorney general as per Section 49(d), the Court affirmed the Superior Court’s decision to strike down the default interest rate as being usurious. The Court, however, then went on to conclude that “[w]ere [it] to treat the default charges in [that] case as ‘liquidated damages’ [it] would strike the default provision as” an unlawful penalty as well. The Court’s language here was somewhat unclear; the SJC may have been saying that default provisions have to pass muster under both the Usury Statute and the common law liquidated damages framework, or it may have been saying that the liquidated damages inquiry would only have applied had the Usury Statute not. But because the creditor in Begelfer failed to comply with Section 49(d), the Court never had to squarely address this issue.

More recently, in Olde Center Ventures, Inc. v. Dinapoli, No. 13–P–1307, 2014 WL 4211117 (Mass. App. Ct. Aug. 27, 2014), a case before the Massachusetts Appeals Court, the creditor did comply with Section 49(d) and argued that its doing so defeated the debtor’s claim that a late fee constituted a penalty. The Court was therefore squarely presented with the question of whether compliance with the Usury Statute precludes a penalty defense. While the Court acknowledged this issue, however, it determined that it did not need to resolve the scope of Section 49(d) because it determined that the late fee was not a penalty in any event. As a result, the question of whether compliance with Section 49(d) permits creditors to impose default obligations that would otherwise be penalties remains an open question in Massachusetts.

In the face of this uncertainty, what should parties who enter into loan transactions do? For creditors, it is important to understand that simply complying with Section 49(d) may not be enough when it comes to default provisions. Creditors, rather, should, at the very least, be prepared to justify why they chose the rates and fees that they did and ideally be able to relate those rates and fees to their actual costs. Creditors can also draft the penalty provisions in such a way that they are calibrated to rise as the costs of default gets higher, such as by having default rates and fees grow larger as the default continues over time. The burden of proving a penalty, ultimately, will lie with the debtor, so creditors should be able to successfully defend default provisions so long as they are adequately prepared to do so.

As for debtors faced with onerous default provisions, it is important to remember that while the Usury Statute may not be much of a sword with which to attack default rates, it is not necessarily a shield for creditors either. Certainly, any debtor trying to argue that a default provision is an unlawful penalty faces an uphill fight. But default provisions are more vulnerable than many other contractual terms, and if a creditor raises Section 49(d) as a defense, a debtor should be prepared to argue to the contrary.


Ultimately, it is unclear in Massachusetts as to how high default rates in loan agreements can be – and the higher they get, the less clear it becomes. The Usury Statute may not help debtors very much, but at the same time, it may not help creditors either. Absent more guidance from the courts of the Commonwealth, parties to loan agreements should be aware of this uncertainty and take appropriate steps. For creditors, that may mean more caution when drafting default provisions; for debtors, that means an opportunity to get out of them.

If you have any questions, please contact Thomas R. Sutcliffe, an associate in Prince Lobel’s Litigation Practice Group and the author of this post. You can reach Tom at 617 456 5054 or


Proposed Rule to Amend the Safe Harbors to the Anti-kickback Statute Affects the Provision of Local Transportation Services


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On October 3, 2014, the Office of Inspector General (OIG) issued a proposed rule to amend the safe harbors to the anti-kickback statute and the civil monetary penalty rules. See 79 Fed. Reg. 59717 (October 3, 2014).  Comments on the proposed rule are due on December 2, 2014.  The OIG’s proposed rule is another example of how regulations that are aimed at reducing fraud and abuse by health care providers and suppliers end up disadvantaging the patients they serve.

“Established Patient” versus “New Patient”

One proposed change is to add a new safe harbor to protect an “Eligible Entity” which provides free or discounted local transportation services to federal health care program beneficiaries, provided the services meet specified criteria. The OIG proposes to add this safe harbor under the authority of section 1128A(a)(5) of the Social Security Act.  The OIG notes that “Congress intended that the statute not preclude the provision of complimentary local transportation of nominal value,” citing H.R. Conf. Rep. No. 104-736 at 255 (1966).  79 Fed. Reg.  59721.  The OIG interprets “nominal value” to mean “no more than $10 per item or service or $50 in the aggregate over the course of a year.” Id.

The proposed safe harbor would protect free or discounted local transportation made available to an “established patient” and a person to assist the patient, if necessary, to obtain medically necessary items and services. However, it would not protect free or discounted local transportation made available to a “new patient.”  As explained by the OIG, an example of an “established patient” is a patient who “has selected an oncology practice and has attended an appointment with a physician in the group.”  79 Fed. Reg. 59722.  Under the OIG’s proposal, “the physician could offer transportation assistance to the patient who might have trouble reliably attending appointments for chemotherapy.” Id.  The OIG states this requirement is designed to reduce the risk of a health care provider or supplier using a transportation program to increase business by transporting patients to its premises or by inappropriately inducing referrals from other providers or suppliers by transporting patients to their premises.

But what about the patient who has not yet been diagnosed with cancer because he/she will not take that first step to schedule an appointment with a physician due to the fact that he/she does not have and/or cannot afford to pay for transportation? For that patient, the availability of free or discounted local transportation to a physician’s office may be a deciding factor in whether the patient lives or dies from the disease.

Eligible Entity

The proposed definition of an “Eligible Entity” excludes individuals and entities or family members of others acting on their behalf that primarily supply health care items, including but not limited to, durable medical equipment suppliers or pharmaceutical companies, as well as laboratories. The OIG believes these individuals and entities would use transportation services to generate business for themselves by steering patients to practitioners and referral sources who order their products.  The OIG is soliciting comments on whether home health agencies also should be excluded, in whole or in part, from protection as an “Eligible Entity” as it is concerned about the overutilization of home health services.  Specifically, the OIG is concerned that if a home health agency provides free or discounted local transportation to physician offices, it might induce the physician to refer to that home health agency and might result in overutilization in the form of unnecessary physician visits or unnecessary home health care prescriptions.  Because of this concern, the OIG is considering excluding home health providers from the safe harbor protections when they provide transportation to referral sources, such as physicians, but including them in the safe harbor protections when they provide transportation to non-referral sources, such as pharmacies.

But what about patients in need of free or discounted transportation services to attend their physician office appointments? If the OIG adopts a final rule which excludes home health providers from the safe harbor protections if they provide patients with free or discounted transportation services to referral sources, those patients will need to find an alternative source for transportation services.

If you have any questions about the OIG’s proposed rule or would like to submit comments on the proposal, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice Group and the author of this post. You can reach Rochelle at 617 456 8036 or


-Rochelle H. Zapol

There Are Legal Issues In Blogging? – Amanda Schreyer’s Guest Post on Mom 2.0 Summit


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The following piece by Prince Lobel media and intellectual property attorney Amanda Schreyer first appeared on the Mom 2.0 Summit website.

I get some quizzical looks when I tell people what I do. I used to get them more often, though. I’m not asked “Why would a blogger need a lawyer?” as often as I once was. I think that’s a result of greater mainstream acceptance of blogging as an industry in the past few years. Increasingly, in addition to using a blog as a platform for self-expression and to connect with a community of like-minded people, opportunities exist for bloggers to use their social media platforms to benefit financially. Many of you have created businesses with your blog (whether you intended to or not), so you may be encountering some issues you have never dealt with before. And whether you blog for fun or for money or both, there are legal aspects to consider–such as intellectual property rights (yours and others’) and consumer protection rules. Here are some of the topics I discuss most often with bloggers:

1. Trademarks and branding

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods or services of one party from those of another. In the context of blogging, your blog name, as well as any logo you use in your blog, could be used as a trademark. In the United States, your rights in a trademark arise from your use of that trademark, not merely from being the first to register the mark with the government. A blog name or logo functions as a trademark when you are using it in connection with the services you provide (i.e., blogging), in interstate commerce (i.e., on the Internet). Once you have been using the name long enough to have established trademark rights in it, you can generally stop someone else from using a blog name “confusingly similar” to yours, if you can demonstrate you were using the name as a trademark first. The goal is to have your blog name act as a source identifier. This means that when people see the name/logo of the blog, they know the content comes from you. Using the name/logo consistently – same font, same color – over time will help you to create this kind of recognition and build goodwill in your brand.

2. Domain names

There are people who purchase domain names in which they have no intellectual property rights–domains often including other people’s trademarks, or common typos of those trademarks–and “cybersquat” on them. Typically, they buy the domains and hold them hostage unless you are willing to pay them a fee to have them transferred to you. Let’s say you have purchased the domain name, and you are gaining a following on your blog located there, and by using @uniqueblogname as your handle on Twitter and Instagram. Then you learn that someone else has purchased, and your readers are getting misdirected there. That person is also using @uniqueblognamedotnet, and you have received emails from your readers asking if both handles are yours. Again, if you were first to use uniqueblogname as the name of your blog and @uniqueblogname as your handle, then you may be able to stop that person from using that “confusingly similar” domain and handle through a non-judicial remedy such as a Uniform Domain-Name Dispute-Resolution Policy procedure.

3. Content and copyright

Copyright considerations in blogging involve ensuring that you are only using content that you have the right to use, and enforcing your rights to exclusively use content you create. Because digital content is so easy to reproduce, it can easily end up where it does not belong.

In the United States, as soon as you have fixed your work in a tangible medium (i.e., written content and posted it on your blog), you have secured copyright in that content. While there are benefits of registering your work with the Copyright Office, it is not required in order to stop someone else from using your content unlawfully.

I hear many common assumptions about copyright law and blogging, like “As long as I only use X number of words, or X seconds of music, from someone else’s work, I don’t need permission;” “I can repost someone else’s photo, or a portion of someone else’s article, on my blog without permission as long as I give that person credit;” “I can repost someone else’s photo, or a portion of someone else’s article, on my blog as long as I link back to the original source” and “If it’s on the Internet, it’s in the public domain.” While some of the above may be acceptable practices among content creators, generally they are not consistent with copyright law.

Unless your use of someone else’s work on your blog is truly an exception to copyright infringement such as fair use, reproducing someone else’s blog post, article, photo, or illustration will likely violate that person’s exclusive right to control copying of the work (i.e., her copyright).

In addition, you might find your article, photo, or illustration on someone else’s blog. Multiple avenues exist for enforcing your copyrights in those works, and you might not even need a lawyer to do it. For example, the Copyright Act contains a mechanism through which a copyright owner can direct an internet service provider to take down infringing content upon receipt of a properly-worded notice. Note, however, that a copyright registration with the Copyright Office is your ticket into court. You can’t file a lawsuit without one.

4. Endorsements and FTC required disclosures

Once you have gained a following, you may have the opportunity to provide sponsored content on your blog. In this method of monetization, you create a post or tweet or pin or video about a product or service (an endorsement) in exchange for some kind of consideration from the company owning that product or service. “Consideration” does not only mean money. If you have received clothes, hotel rooms, gadgets, subscriptions, etc., from the company sponsoring the post, then you have received consideration, and you must disclose this to your readers. The Federal Trade Commission wants to protect consumers, so it wants to make sure that your readers have the information they need to be able to decide whether they believe your endorsement was influenced by your receipt of consideration. In furtherance of this goal, the FTC has published guidelines for bloggers regarding advertising and endorsements of products and services to help you understand your obligations for disclosing your relationship with a sponsor.

5. Hosting contests and sweepstakes

If you are hosting a promotion on your blog or Facebook page or Twitter account where your readers enter to win a prize, you are hosting a sweepstakes or contest, and there are rules you need to follow to make sure you are doing it lawfully. A sweepstakes includes a prize, and a random chance to be chosen to win that prize. A contest includes a prize, and the use of the skill of the entrant to win the prize based on criteria (e.g., “best essay,” “cutest puppy photo”). A sweepstakes cannot require consideration to enter, because that would convert it into an illegal lottery. A contest can have consideration, because the awarding of the prize is based on skill, and not chance. Again, consideration does not mean only money. In some states consideration can be anything of value to the promoter, which may be submitting a friend’s email address, subscribing to a newsletter, or filling out a burdensome entry form. Laws regarding online promotions vary from state to state, and some states require that you register the promotion with the state or that you post a bond to cover the value of the prize. The official rules of the sweepstakes or contest are your contract with the entrant, and must contain certain terms required by each state’s laws. You should also make sure that any promotion you run on a platform outside of your blog – such as Facebook or Twitter – complies with that platform’s terms and conditions for running promotions.

Regardless of where you are in your blogging experience, you are dealing with intellectual property. And as you grow your blog, compliance with other laws and regulations may be necessary. By being aware of some of your rights and obligations, and being able to recognize issues early on, you will be able to spend less time thinking about any of them, and more time focusing on creating great content.

If you have any questions about blogging, media, or intellectual property, please contact Amanda Schreyer, attorney in Prince Lobel’s Media and First Amendment Law Practice Group. You can reach Amanda at 617 456 8091 or


A Tale of Junk Faxes, Wily Lawyers, and Super Bowl Seasickness


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faxThere’s very little common sense to be found in this story.

Dubious Fact No. 1:  When the folks who ran Firefly American Bistro behind Boston’s Copley Place received an unsolicited fax inviting them to a 2007 Super Bowl party on a cruise ship, they did not do what the rest of us would do: deposit it immediately in the circular file, to be picked up with the evening trash.

No, the restaurant’s parent company—quaintly known as Hazel’s Cup and Saucer—called its lawyers, who filed what they hoped would be a class action lawsuit.

Dubious Fact No. 2: The lawyers then engaged in what the Massachusetts Appeals Court described as “difficult and costly procedures” to engage an expert witness and hunt down the sender of the fax: a Florida travel agency using a New York fax broadcasting agency known as “Business to Business Solutions.”

Dubious Fact No. 3: Under the federal Telephone Consumer Protection Act, the 1,640 recipients of the 2,000-plus junk faxes, if certified as a class by the court, would potentially be entitled to anywhere from $1.1 million to more than $3.4 million.  Of which the lawyers would, of course, get their cut.  (Maybe those lawyers knew what they were doing, after all.)

Seized by a moment of startling clarity and good sense, Superior Court Judge Frances McIntyre thought an award of that size would be preposterous, given that “the nature of the harm suffered by individual claimants—the cost of paper, ink, and toner—amounts to pennies.” To allow such claims to proceed as class actions, she said, would result in the TCPA being used by lawyers “as a device for the solicitation of litigation.”

So Judge McIntyre threw the 1,640 junk-fax recipients out of court, and sent them down the street to seek redress in Small Claims Court, where they could each receive automatic damages of $500.

Today, the Massachusetts Appeals Court (here comes Dubious Fact No. 4) reversed Judge McIntyre’s ruling, saying that anyone hiring a lawyer to bring a TCPA claim in small claims court would end up paying more for the lawyer than she or he would ever conceivably gain in a damages award.  (That’s sensible enough – until you ask yourself, “Who hires a lawyer to bring a claim in Small Claims Court?”)

The Appeals Court said the class action can now proceed in Superior Court.  That ruling seems plainly correct under the law–proving that, in the immortal words of Mr. Bumble, “The law is a ass.”

The ruling, while sound, leaves unanswered three pressing questions that confound this commentator.  The first:  “Who will benefit from this lawsuit other than the lawyers?”  The second: “Who sends faxes anymore?”  The third: “Who’d want to go a Super Bowl party on a cruise ship, anyway?”

Have at it in the comments: Can you explain to me what I’m missing?

–Robert A. Bertsche

Robert A. Bertsche


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