The Federal Trade Commission\u27s Evolving Deception Policy

The Federal Trade Commission (FTC) has regulated competitive business activities since its inception in 1915. Section 5 of the Federal Trade Commission Act (FTCA) empowers the Commission to enjoin certain unfair -and deceptive business practices. As is the case with other regulatory statutes, Congress chose not to define certain terms in the FTCA, such as deceptive, leaving this task to the FTC and the federal courts. The result has been a steady flow of federal case law clarifying the definition of a deceptive business act or practice

Employer Sponsored Health Benefit Plans under ERISA after Pegram v. Herdrich: The Fiduciary Duty Argument and Mixed Eligibility versus Treatment Decisions

Accordingly, this Article is a rebuttal to the Supreme Court\u27s opinion in Pegram v. Herdrich on the strength of two primary arguments. First, the Seventh Circuit\u27s rationale was on-point and extremely sound in concluding that HMOs do stand as trustees as envisioned by the ESBP and cannot offer kickback payments to physicians simply to increase shareholder wealth at the expense of patient health and welfare. This was a textbook example of breach of fiduciary duty given the medical trust relationship between physician and patient. Had the HMO offered a hedge fund option using securities from firms other than itself, there is no question that the fiduciary issue would have been much more difficult for Herdrich to establish. But by offering cash incentive payments, Carle Company wedged the interest of shareholder wealth maximization between that of physician performance and patient health needs. This created a natural fiduciary tension that cannot be explained away by Justice Souter\u27s comment that, [t]he pleadings must also be parsed very carefully to understand why acts by physician owners acting on Carle\u27s behalf are alleged to be fiduciary in nature. All such decisions are fiduciary in nature

Employer Sponsored Health Benefit Plans under ERISA after Pegram v. Herdrich: The Fiduciary Duty Argument and Mixed Eligibility versus Treatment Decisions

Accordingly, this Article is a rebuttal to the Supreme Court\u27s opinion in Pegram v. Herdrich on the strength of two primary arguments. First, the Seventh Circuit\u27s rationale was on-point and extremely sound in concluding that HMOs do stand as trustees as envisioned by the ESBP and cannot offer kickback payments to physicians simply to increase shareholder wealth at the expense of patient health and welfare. This was a textbook example of breach of fiduciary duty given the medical trust relationship between physician and patient. Had the HMO offered a hedge fund option using securities from firms other than itself, there is no question that the fiduciary issue would have been much more difficult for Herdrich to establish. But by offering cash incentive payments, Carle Company wedged the interest of shareholder wealth maximization between that of physician performance and patient health needs. This created a natural fiduciary tension that cannot be explained away by Justice Souter\u27s comment that, [t]he pleadings must also be parsed very carefully to understand why acts by physician owners acting on Carle\u27s behalf are alleged to be fiduciary in nature. All such decisions are fiduciary in nature

ERISA Qualified Pension Plan Benefits as Property of the Bankruptcy Estate: The Unanswered Questions after Patterson v. Shumate

To better understand the impact of Patterson, as well as future debates regarding conflict between state and federal law in the Bankruptcy Code, this article will review the underlying case law that set the stage for this judicial showdown. Part II specifically analyzes the competing case lines which excluded pension plan benefits from the bankruptcy estate. Part III briefly summarizes those cases which concluded that plan benefits must be included in the estate but may be subject to exemption under state or federal law. Part IV reviews the Patterson opinion in detail, as well as the issues and analysis presented by the Court, and Part V addresses the open questions that remain after Patterson . Finally, some concluding remarks are offered to summarize the importance of Patterson in terms of its impact on uniform treatment of debtors regardless of jurisdiction, as well as the possibility of future conflicts over Bankruptcy Code language given the Supreme Court\u27s reliance on the so-called plain meaning approach

Current Federal and State Conflicts in the Independent Contractor Versus Employee Classification Controversy

Part II of this Article outlines the development of the federal IRS worker classification status and attendant issues. Part III introduces some initiatives taken by the IRS in an effort to settle cases with taxpayers. Part IV discusses the federal criminal sanctions that can be imposed on an individual or entity which fails to collect or pay over to the United States Treasury these employment trust fund taxes. In Part V, the status of worker classification in North Carolina is considered relative to cases filed primarily with the Employment Security Commission. Finally, in Part VI, some observations are offered regarding the disparity in worker classification matters at the state and federal level, and commensurately between revenue and regulatory agencies