State Of The Market

Link: http://www.vegaslegalmagazine.com/state-market-dec-2017/

Article:

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

On October 6th, the employment statistics from the Department of Labor were announced. The US economy shed 33,000 jobs in September; the first monthly net loss in six years. Considerably an anomaly in this current cycle and it was the good news bad news scenario. First the bad news — the jobs lost were attributed to the impact of Hurricanes Irma and Harvey. The good news – wages moved higher and unemployment fell to 4.2%.

Speaking of adding insult to injury in September, on October 8th, Hurricane Nate made landfall hitting the Gulf Coast and Biloxi Mississippi. With deadly hurricanes, a major earthquake in Mexico and the latest shootings in our beloved Las Vegas, our country is experiencing human loss and suffering testing our resolve and wrangling our nerves as we race toward the end of 2017. For most, the end of the year can’t arrive fast enough.

Our country may be torn, but we’re not out for the count by any stretch of the imagination. As one of the longest Bull market cycles, now concluding its ninth year, marches on, many on Wall Street and Main street are wondering what’s going to derail or propel the economic expansion. Given the environment of low unemployment, rising wages, stubbornly low inflation and rising export trade – accompanied by a weaker dollar, many questions persist. In fact, October 9th marks exactly ten years from the stock market peak before the Financial Panic of 2008. Q/3 earnings announcements begin the same week.

Based on total return, over the last ten years since September 2007, stocks have performed the best compared with the 10-year Treasury Note, gold, oil, housing, and cash. Assuming no major shift in October, the S&P 500 has generated a total return (capital gains plus reinvested dividends) of 7.4% per year, essentially doubling in value in ten years.1 Gold did well, but lagged stocks, increasing 5.7% per year. A 10-year Treasury Note purchased that night (now coming due), would have generated a yield of 4.7%. Oil was a laggard, down 4.3% per year. Home prices increased about 1% per year, on average, and “cash” averaged 0.4%, both trailing the 1.6% average gain in the consumer price index.2

And what about our Federal Reserve? The process of unwinding Quantitative Easing (QE) is going to take time. The Fed is going to trim the balance sheet by $10 billion a month for the first three months, $20 billion per month for the next three, and on and on until it hits a pace of $50 billion per month. When the FOMC initiates the “balance sheet normalization program” in October it would take until about 2021 for the balance sheet to reach what Economists believe is a normalized level.

I think the Fed could be more aggressive about reducing their balance sheet. Moreover, I don’t think QE helped the U.S. economy in the first place; all it did was stuff the banking system full of excess reserves that the banks didn’t lend aggressively due to stress testing requirements and because of government overreach with regulations. The Fed created the sugar high the financial press critiqued and investors craved so they could run the table with overweighting investment allocation in stocks.

Many now believe there will be a rate hike in December. In fact, in the last FOMC statement from September, their language stated, “The Committee expects that economic conditions will evolve in a manner that will warrant gradual increases in the federal funds rate; the federal funds rate is likely to remain, for some time, below levels that are expected to prevail in the longer run. However, the actual path of the federal funds rate will depend on the economic outlook as informed by incoming data.”3

The Fed isn’t the only central bank tilting toward a less-loose monetary policy. The Bank of England (BoE) and European Central Bank (ECB) also seem determined to start trimming back on some of the aggressive measures of the past decade. The BoE looks like it will soon move rates up after having cut them to 0.25% in the aftermath of the Brexit vote in June of 2016. Meanwhile, the ECB will start tapering its asset purchases.

Regardless of what happens soon, central banks around the world remain extremely accommodative. None of them are remotely close to running a “tight” monetary policy. Yes, I’ve discussed the Fed here before, but for investors, at this point it’s best to ignore the noise.

Jeff deGraaf, chairman of Renaissance Macro Research said that Employment data and purchasing managers index readings are at levels that both “generally imply overheating and a Fed aggressively pinching off the excesses with higher rates.” RenMac’s Master Employment Index is now in the 90th to 100th percentile, which is historically negative for S&P 500 forward returns, deGraaf said, as it signals the economy is running too hot.

“PMI readings are also in the top decile, which also points to a negative impact on S&P returns three and twelve months forward,” deGraaf said. He worries that the Fed’s preferred thermostat, inflation, remains in the bottom quartile. “That’s a little like judging the heat in a microwave by touching the door,” calling it the “wrong instrument for the wrong device.”4

Stocks are still undervalued relative to bonds, the Fed is still loose, and the economy is expanding. As long as there are “excess reserves” in the system, monetary policy will not threaten the recovery. If it takes the Fed as long as I think to fully tighten, this recovery may be the longest ever and last until 2019. Whether the Trump Administration can push through tax reform is a whole story onto itself given the divide among the GOP and the Democratic challenges to defend the middle and lower income classes.

You can’t ignore the loss of life due to senseless shootings, natural disasters, terrorism or isolated police brutality. But, you can ignore the noise created by headline risk in the markets from financial journalists who suggest that the markets have come too far and are overpriced. Regardless, it’s best to pay very close attention.

Mark Martiak is a New York based Investment Advisor Representative for Premier Wealth Advisors LLC. Mark is a regular Contributor for VEGAS LEGAL MAGAZINE who has appeared on CNBC’s CLOSING BELL, YAHOO! FINANCE MIDDAY MARKET MOVERS, FOX BUSINESS NETWORK and has been quoted in THE WALL STREET JOURNAL.

 Securities offered through: First Allied Securities, Inc. A Registered Broker/Dealer. Member: FINRA /SIPC. Advisory Services offered through: Premier Wealth Advisors, LLC. (PWA) & First Allied Advisory Services, Inc. (FAAS). Both Registered Investment Advisers.  PWA is not affiliated with First Allied Securities, Inc. or FAAS.

Such forward-looking statements are subject to significant business, economic and competitive uncertainties and actual results could be materially different. There are no guarantees associated with any forecast and the opinions stated here are subject to change at any time and are the opinion of the individual strategist. 

 1 The article was written in October 2017. Some statistics may have changed before the publishing of this article.

2 Data comes from the following sources: Census Bureau, Bureau of Labor Statistics, Bureau of Economic Analysis, the Federal Reserve Board, and Haver Analytics. Data is taken from sources generally believed to be reliable but no guarantee is given to its accuracy. Indexes are unmanaged and investors are not able to invest directly into any index.  Past performance is no guarantee of future results. The S&P 500 Dividends Reinvested Price Calculator with data taken from Robert Shiller: https://dqydj.com/sp-500-return-calculator/; http://www.econ.yale.edu/~shiller/data.htm.

3 Federal Reserve issues FOMC statement September 20, 2017

https://www.federalreserve.gov/newsevents/pressreleases/monetary20170920a.htm

4 MarketWatch: Some Investors See Signs Stock Market ‘on verge’ of a melt-up: published: Oct 8th, 2017.

 

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

 

 

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Farewell Marshall Bill

 

Link: http://www.vegaslegalmagazine.com/farewell-marshall-bill/

Article:

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

For those who work or practice at Family Court, everyone knew “Marshal Bill.” William Michael Datthyn was born on October 13, 1971, in New York and tragically passed on September 3, 2017, on a river in Idaho. Bill is survived by his mother, 2 brothers, 1 married sister and their children. A memorial was held at City Hall on September 15, 2017.  Stories from his life were shared by both family and friends. I was approached by Vegas Legal Magazine to do a story on Bill from my personal perspective since not only was I his boss, he was a best friend. I was awoken many times during the weeknights leading up to my talk given at his memorial and I took them as Bill giving me hints as to what he wanted me to say. In the past week, this has occurred yet again. That is when this article changed from silly stories from our “bromance” to a simple acknowledgment of Bill’s heroism.

Bill followed in his mother’s footsteps and became an NYPD officer in January 1993.  He obtained special permission to wear his mother’s retired shield #891. Bill was in New York for those tragic events of September 11, 2001. Fortunately, he was not in or around the buildings that came down on that fateful day. Bill did know some of the first responders that perished and in the long weeks afterward, he worked tirelessly in the cleanup efforts of that enormous aftermath. Bill discussed generally what he did in those cleanup efforts, but the specifics he kept mostly to himself. From what Bill said, he was involved in the discovery and cataloging of body parts as they were recovered. His sister stated at the memorial that Bill would often brag that he got to eat for free at Olive Garden after his long shifts.

In May 2006, Bill was in a motorcycle accident where he sustained injuries that would not allow him to continue his NYPD service. He later moved to Las Vegas and was hired briefly by the Transportation Security Administration (TSA), a subdivision of the Department of Homeland Security. This was his way of trying to continue to keep our country safe. However, as you may recall from the many news stories at the time, the TSA was in complete disarray.  Bill could not handle chaos; he needed things to be neat and organized. As a result, he resigned from the TSA and took a job as an Administrative Marshal at Family Court in January 2007.

I hired Bill as my Judicial Marshal prior to taking the bench in January 2009. We worked together from my first day on the job until his last day on the job. 9/11 was always a special day for Bill. He would always bring to work a small corner of stone every 9/11 to remind fellow employees, attorneys, litigants, etc. to “never forget.” I am certain that piece of stone from those hallowed grounds was his most cherished object in this life. At his memorial, the U.S. flag flown at half-staff at Family Court on September 11, 2017, was presented to Bill’s family as a token of his dedicated service.

Bill was a protector. As a judge, it is truly overwhelming to contemplate that a fellow human being has taken an oath to protect my life. I have no doubt that Bill would have sacrificed his life for me or my family. I would often bring Bill along to social events as he loved to socialize. If the event included other judges and had no security, he then became the security. Bill would take a strategic position in the room and constantly scan for any issues. When judges would slip out of the event, he would escort them to their car to ensure they left safely. He was not paid a dime for this service.

Bill was compassionate. Every Valentine’s Day he would buy 100 roses and hand them out to all the female employees in the building. He wanted to ensure that everyone was recognized on that day and that no one was overlooked. Except for the hot summer months, Bill held a monthly barbeque in our parking lot, sending reminders out to the whole building. Tips were accepted, which he would put toward the next month’s costs. Normally, he personally just funded the difference. It was done not only to feed those who enjoyed his cooking, but to also create a social environment. Bill had a photographic memory. Whenever we walked the halls and someone would ask him when the next barbeque was, he could later tell me their name, job title and a few things personal things about them.

A few weeks before he passed, Bill received a phone call from his doctor while we were preparing for court. He then approached me and disclosed that he had been paying out-of-pocket every year for specialized tests to ensure that his service at Ground Zero had not affected his health. Bill disclosed that whatever levels they were monitoring had just become elevated. For the first time ever, I could sense fear in my friend. I tried to console him that tests were often wrong and everything was going to be just fine. Bill then decided to take a last minute trip to go be with his family when the accident occurred.

I do not profess to know all of life’s answers. However, I do believe that all things happen for a reason. My belief of this tragic accident–it was Deity simply having compassion on this faithful servant of our community and not allowing him to suffer or endure incomprehensible pain. I miss my best friend. Just the other day an attorney gave me his condolences. He teared up, so did I and then we both became blubbering messes. What would cause 2 grown men to sob like children? It was the servicecompassion, protectionheroism, and friendship of William Michael Datthyn. GodspeedMarshal Bill!

 

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

 

Meet The Incumbent: Judge Rob Bare

Link: http://www.vegaslegalmagazine.com/judge-rob-bare/

Article:

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

In this edition of Meet The Incumbent, VLM interviews Judge Rob Bare, a judge in Department XXXII of the Eighth Judicial District Court. Bare began his career as an attorney in the U.S. Army Jag Corps. When the opportune time presented itself, he decided to surprise his mother and run for the position of judge, the pinnacle of the legal profession. It is his love, service and respect for his family and others that drives him. Bare is a graduate of the University of Pittsburgh School of Law and a former Bar Counsel for the State Bar of Nevada.

 

Vegas Legal Magazine: What did you do before becoming a judge?

 

Judge Bare: I was an Army Lawyer (Captain, U.S. Army Judge Advocate General’s Corps), Bar Counsel for the State Bar of Nevada, and I accepted an assignment as a Municipal Court Judge in 2007.

 

VLM: What is the most memorable case you tried as an attorney before taking the bench?

 

JB: I tried a professional discipline case that I prosecuted as Bar Counsel for the State Bar of Nevada concerning allegations that an attorney had misappropriated nearly $400K from client trust accounts. It was a week-long trial where I called a number of her former clients as witnesses and I assisted them in telling their stories. Each story was incredibly compelling. Tremendous damage is done when a lawyer steals money from client(s). The lawyer was disbarred and, perhaps more importantly, the sworn testimony from clients helped to get them at least partial reimbursement for their losses.

 

VLM: What made you decide to run for judge?

 

JBThe experience I had when I was in Municipal Court made me feel that the judiciary was the right place for me. In addition, though it may sound sentimental, the truth is that I started my life in an orphanage and was adopted, and I wanted my election to happen during my mom’s lifetime (since she was in her late 70’s at that time). My investiture was essentially a tribute to my mom.

 

VLM: What does being a judge mean to you?

 

JB: I was honorably discharged from the U.S. Army after deciding to settle in Nevada and practice law in 1993. You can take yourself out of the army, but you can’t take the army out of yourself. Though I don’t think I’m a general, I do feel like at times I am a colonel. What I mean is this: I view being a judge as having a higher responsibility and is therefore the pinnacle of our profession, similar to the rank structure in the armed-forces.

 

VLM: What is your favorite and least favorite thing about being a judge?

 

 JB: My favorite thing about being a judge is presiding over a jury trial. My least favorite thing is when the trial settles. Really! I enjoy the drama and display of professional skills that good lawyers bring to the courtroom. I am also proud of the public who take time out of their busy schedules to resolve disputes as members of a jury panel. I love watching the constitutional right to a jury trial play out.

 

VLM: What is the most memorable case you have presided over as a judge?

 

JB: I was asked to determine whether the procedure that the county commission used to dissolve or abolish the position of Constable was fair. After a hearing process, I did determine that their decision to no longer have a Constable in Las Vegas was proper.

 

VLM: Describe a situation where you had to support a legal position that conflicted with your personal beliefs? Please tell us how you handled it.

 

JB: In Municipal Court, under city law, it was a misdemeanor to have more than 3 dogs. When those cases came up, it was evident to me that the offender who had 4-5 dogs took better care of their dogs than most people with 1 or 2 dogs. Within the ethical allowable boundaries at sentencing, looking back, I would normally not be very harsh in sentencing those cases. In other words, though as a court I would always enforce the law, along with both the defense and prosecution, we would often find creative ways to provide for no repeat offenses on these cases.

 

VLM: Describe a court situation that tested the limits of your patience.  How did you respond? In hindsight, is there anything you would have done differently?

 

JB: I had a non-lawyer showing up to our misdemeanor appeal calendars, reaching out to pro se litigants, and essentially offering to represent them. It became apparent that this was the unauthorized practice of law. I issued a specifically tailored contempt order to stop him. Looking back, I have learned that the better practice in any contempt scenario is to make more specific findings and scrupulously follow technical trappings of contempt procedural law as this is an area wrought with pitfalls for judges. At the end of the day, my handling of this mess worked, and the unauthorized practice stopped.

 

VLM: What’s your biggest pet peeve caused by attorneys that appear in your courtroom?

 

JB: My biggest pet peeve is when attorneys, in an inappropriate manner, direct questions or arguments to each other instead of the court.

 

VLM: What is your best piece of advice for litigants and/or attorneys?

 

JB: To litigants: Though not legally necessary, in civil cases, get a lawyer. To attorneys: The most important asset as an attorney in Nevada is your reputation.

 

VLM: What is your passion outside of law?

 

JB: Jeep trips throughout Nevada. I have a 3-day jeep trip mapped out that is a result of trial and error over fifteen years that, if you go on, you’ll more than likely want to get a jeep! I also have a passion for artwork; both my own and others. I also enjoy red wine induced philosophy talk with my wife.

 

VLM: What do you love most about Vegas?

 

JB: Restaurant hours!

 

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

 

 

Thomas v. Nevada Yellow Cab (2014)

Link: http://www.vegaslegalmagazine.com/thomas-v-nevada-yellow-cab-2014/

Article:

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Since 2012, my mentor, Marc C. Gordon, Esq., and I have been litigating and defending what has become known as the largest employment law class action case in the history of Nevada involving over 5,000 current and former drivers of Yellow Checker Star Transportation (YCS). The case went to the Nevada Supreme Court (NSC) and in 2014 in an intensely divided 4-3 decision, we did not prevail. However, the issues in this case shed light on the legal uncharted world of “implied repeal.” Thomas v. Nevada Yellow Cab Corporation, 130 Nev. Adv. Op. 52 (2014).

In all of American Jurisprudence, there never existed a case similar to its facts and the multiple novel issues of law. From an outsider’s perspective, it is immensely fascinating. But, from my vantage point, it has caused numerous sleepless nights defending a case with so many novel legal issues that to date, have not been completely resolved.  It all stems from the 2006, Nevada Constitutional Minimum Wage Amendment (MWA) that was passed by voters and signed into law on July 1, 2007, guaranteeing a base wage for Nevada workers.

In 2006, under NRS 608.250(2)(e), taxicab and limousine drivers were declared exempt from minimum wage because they are paid based on commission. However, the NSC ruled that NRS 608.250(2)(e) was “impliedly repealed” in 2006, when Nevada voters voted in favor of the MWA.

“The Amendment’s broad definition of employee and very specific exemptions necessarily and directly conflict with the legislative exception for taxicab drivers established by NRS 608.250(2)(e). Therefore, the two are “irreconcilably repugnant,”… such that “both cannot stand,”… and the statute is impliedly repealed by the constitutional amendment.” (Page 6 of Thomas decision).

The NSC ruled that MWA supersedes NRS 608.250(2). “The text of the Minimum Wage Amendment, by enumerating specific exceptions that do not include taxicab drivers, supersedes and supplants the taxicab driver exception set out in NRS 608.250(2).”  (Page 9 of Thomas decision).

In 2009, United States District Court of Nevada Judge Clive Jones was the first jurist to weigh in on the question of “implied repeal,” interpreting Nevada law in Lucas vs. Bell 2009 WL 2424557 (D. Nev. June 24, 2009). His decision against “implied repeal,” although not binding on the NSC, was nonetheless the only statement of competent judicial authority on the Nevada law question, and remained so until Thomas. From 2006, until June 26, 2014, employers followed the law as interpreted by Judge Jones, and were reasonable in doing so, since the NSC had not spoken otherwise. In addition, the Nevada Labor Commissioner comported with that state of affairs, and continued to recognize the validity of NRS 608.250(2) exemptions until Thomas. The Labor Commissioner never initiated action against any of the taxicab or limousine companies consistent with NRS 607.160(2) which states:

“If the Labor Commissioner has reason to believe that a person is violating or has violated a labor law or regulation, the Labor Commissioner may take any appropriate action against the person to enforce the labor law or regulation whether or not a claim or complaint has been made to the Labor Commissioner concerning the violation.”

The entire taxicab and limousine industry was following the law as it existed and was understood at the time, which was being enforced by the Office of Labor Commissioner. However, the Thomas,decision made it clear that the exemptions under NRS 608.250(2) no longer applied.

NRS 608.250(2) contained exemptions in effect since 1965, which employers reasonably and legitimately relied upon. In fact, these exemptions still remain on the books as of today, which is more perplexing since the Thomas decision was clear that those exemptions were “impliedly repealed.” The exemptions include the following: casual babysitters; domestic service employees who reside in the household where they work; outside salesperson whose earnings are based on commissions; employees engaged in an agricultural pursuit for an employer; taxicab and limousine drivers; and persons with severe disabilities whose disabilities have diminished their productive capacity in a specific job and who are specified in certificates issued by the Rehabilitation Division of the Department of Employment, Training and Rehabilitation.

 

Based on the Thomas ruling of “implied repeal,” any worker in Nevada outlined in those exemptions can now bring a class action lawsuit against their respective employer for conduct that occurred prior to 2014, although there is a 2-year statute of limitations.  To date, the only previously exempted industries to be civilly sued are taxicab and limousine companies. Unfortunately, the Thomas decision does not spell out what that process would entail and how it would coincide with the legal enforcement mechanism of the Office of Labor Commissioner, which never initiated any enforcement action prior to Thomas. The intent of the Thomas decision was not to punish employers who reasonably and legitimately relied upon NRS 608.250(2) exemptions. Rather, the intent of Thomas was to make one conclusive opinion on minimum wage law and to clarify the law going forward. Uncertainty in the law always breeds expensive litigation and inequities. Unfortunately, there still remain issues of law surrounding the MWA that have yet to be resolved.

The Department of Business and Industry shed light on the confusion and uncertainty as to the state of minimum wage law in Nevada and the interactions between the MWA and NRS 608.250(2) in its winter 2014 newsletter on page 7 titled, A Minimum Wage Guide For Nevada Employers. “While the constitutional amendment did not directly conflict with the exemptions outlined in NRS 608.250, its passage created some uncertainty. It was this uncertainty that the Nevada Supreme Court addressed in Thomas v. Nevada Yellow Cab, 130 Nev. Adv. Op. 52 (2014).” The legal battle and sleepless nights will continue, but for now employers are advised to take note of the decision in Thomas.

Tamer B. Botros, Esq., is the Senior Litigation Counsel at Yellow Checker Star Transportation and is currently defending the largest class action employment law case in the history of the State of Nevada.  His practice consists of litigating complex civil cases. He can be reached at tbotros@ycstrans.com and (702) 873-6531. He is also the founder of http://www.702TICKETLAWYER.COM

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

 

 

The MD-DC

Link: http://www.vegaslegalmagazine.com/md-dc/

Article:

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Allopathic physicians with a Medical Doctorate (M.D.) or a Doctorate in Osteopathic Medicine (D.O.) often find it valuable to partner with a chiropractic physician (D.C.). This relationship is especially valuable if the allopathic physician is a primary care provider. The relationship can also be quite profitable for a D.C. as well. However, the two types of providers cannot form a direct partnership in most states due to the Corporate Practice of Medicine (CPOM) laws. In addition, anti-referral laws such as the Anti-Kickback Statute (AKS) prohibit the individual providers from receiving financial benefits of any kind for referring patients, especially from other providers. This creates a paradoxical situation where all parties (the M.D./D.O., the D.C., and the patients) benefit from this specific partnership but significant legal roadblocks stand in its way. This article discusses how M.D./D.O.s may work with a D.C. to provide better care for their patients without running afoul of the various regulations governing medical practice.

The M.D.-D.C. partnership (commonly referred to as the “MD-DC”) creates substantial advantages for both types of providers and their patients. The first major advantage of the relationship is higher reimbursements. If an M.D. examines the patient, and sets and supervises the treatment plan for the D.C. to follow, the practice is allowed to bill for the chiropractor’s services as physical therapy under the M.D.’s billing code. For the same procedure, insurance providers, both government and private, reimburse up to three (3) times as much when billed under the M.D. compared to when billed under the D.C. In addition, if the D.C. is working under the supervision of an M.D., s/he can provide physical therapy services to the patients, apart from and in addition to chiropractic care.

The patients also derive significant advantages from MD-DC relationship. An M.D. is capable of treating a larger number of maladies than a D.C.; who must limit his/her practice to treating musculoskeletal issues. Chiropractic medicine only offers minimal prescriptive authority and most D.C.s are not even authorized to write prescriptions, for pain medication or otherwise. Therefore, if both types of providers are collocated and partners, patients only need to go to a single clinic to receive treatment for health issues other than musculoskeletal injuries, including primary care. Also, M.D.s are authorized to issue pharmaceutical prescriptions. Therefore, if the patient’s pain is not adequately addressed through chiropractic manipulations, they may be referred to the M.D. to receive pain management treatment, including pharmaceutical prescriptions. If needed, the M.D. may also be able to refer the patients directly to receive surgical care, cutting out an additional referral step and office visit.

The MD-DC provides patients with access to conservative care, allowing providers to treat patients’ issues with minimal pharmaceutical assistance and expense. In fact, many musculoskeletal injuries may be treatable with only chiropractic manipulation. Easy access to and optimal utilization of chiropractic manipulation allows the M.D. to prescribe a lower dose of analgesic (pain relieving) medication for musculoskeletal injuries. Analgesic medications, including opioids, have significant side effects, most notably, substance addiction. This MD-DC therefore aligns well with national public policy to combat the over-prescription of medications like opioids.

Unfortunately, despite the equitable advantages of these partnerships, they are legally difficult. CPOM laws in most states, including Nevada, prohibit medical practices from being owned by persons not licensed to practice medicine. See NRS 89.070.1. These laws also prohibit a non-M.D./D.O. from having any voting control (through equity) in a professional medical entity. Id. Therefore, an M.D. and a D.C. cannot form a professional medical entity together to provide medical services under Nevada law. However, these providers may still be able to work together under different types of arrangements.

The M.D. can own and operate a medical practice where s/he employs the D.C. to provide their services (the “Employment Model”). This employment arrangement can either be a flat, salary-based compensation, or it may provide the D.C. with an opportunity to earn a bonus based upon case volume and overall practice performance. However, for these bonuses, the M.D. employer and D.C. employee must negotiate the bonus compensation in advance and this bonus arrangement must be memorialized as a part of the D.C.’s employment agreement which must have a term of at least one (1) year to avail the practice of the employment safe harbors created in the anti-kickback laws.

The second method of the MD-DC is the management services organization (“MSO”) model. The two providers form an MSO which does not provide medical services. However, this entity may provide all of the necessary non-medical services to the M.D.’s (and the D.C.’s) practices/clinics, including but not limited to, leasing/buying space and equipment, paying non-clinical staff, billing and collecting, etc. The profit that the MSO makes for providing these non-medical services may be shared legallybetween the M.D. and the D.C. Each partner in the MSO may choose whether to contribute capital or services, or a combination thereof, and receive distributions of profit accordingly. Further details of the MSO structure can be found in our article entitled ‘The ABCs of the MSO’ published in the summer 2017 edition of Vegas Legal Magazine.1 This article explains the MSO corporate structure, the regulations governing it, and the common pitfalls providers face when participating in such entities.

The State of California is a notable exception in this regard since its CPOM law, the Moscone-Knox Professional Corporations Act, allows other licensed personnel such as chiropractors, psychologists, optometrists, clinical social workers, etc. to receive equity in a professional medical corporation, so long as the sum of the equity held by such other licensed personnel does not exceed forty-nine (49%) percent. Conversely, in a professional chiropractic corporation, the licensed allopathic physician(s) may hold equity so long as the total equity held by a non-chiropractor does not exceed forty-nine (49%) percent.

M.D.s and D.C.s may use either of the aforementioned arrangements (or combinations/versions thereof) to structure their relationship. However, both federal and state regulations addressing anti-referral and CPOM laws are extremely broad and complex. The arrangement, as set up, must be exactingly complaint with all the relevant criteria to survive regulatory scrutiny. Providers must be cognizant of not just the letter of the law, but also its spirit. In addition, the providers must put a robust dispute resolution structure in place at the outset so the interests of all parties, including the patients, are protected in the event of a disagreement between the providers down the line.

The providers are strongly encouraged seek the assistance of experienced healthcare counsel and financial advisors to set up an MD-DC. Counsel will ensure the established arrangement is not only compliant with law and public policy, and will also help implement robust measures to protect not just the interests of the individual parties, but also the confidentiality, integrity, and accessibility of the patient records in the event of a dispute. Finally, utilizing the services of a certified public accountant (CPA) with healthcare experience will help ensure that both providers receive equitable compensation for their hard work and capital, irrespective of the type of arrangement they decide on.

A partnership between an M.D./D.O. and a D.C. creates immense value in the healthcare marketplace. However, given the breadth and depth of the regulations governing such a relationship and the volume of increasingly lucrative violations thereof, it is easy for providers to be lured into relationships that may land them into trouble. Aspiring MD-DC participants should understand that the power of partnership can be as risky as it is profitable. Collaboration is just as important clinically as it is professionally, and the right professional team can make the MD-DC everything it promises to be, and more.

Glenn H. Truitt, Esq. is a managing partner at Ideal Business Partners (www.idealbusinesspartners.com), a multidisciplinary professional services firm serving healthcare professionals with state-of-the-art legal, financial compliance and strategic advice, working together to lift up their practices. IBP consults with ComplyPro (www.mycomplypro.com), a HIPAA compliance services company, serving Nevada and southern California, and employing both traditional and digital compliance tools to develop comprehensive, customized compliance solutions for any size practice.

Malvika Rawal, Ph.D., J.D., is a law clerk at Ideal Business Partners. She received her Master of Science at the University of Delhi in Biomedical Sciences and her doctorate degree in Free Radical and Radiation Biology at the University of Iowa. She then received her Juris Doctor at the University of Iowa College of Law in May 2016. Rawal is deeply involved with ComplyPro, a HIPAA compliances services company.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

 

 

Alimony & Child Support Payments: In A Bankruptcy

Link: http://www.vegaslegalmagazine.com/alimony-child-support/

Article:

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Ex-spouses and divorced parents have long tried creative solutions to avoid spousal and child support payments. In one instance, a father offered to give up all parental rights and make a lump sum payment for child support in hopes of avoiding larger payments as his income increased. Even lottery winners have been known to sell a winning ticket for cash at a discount to avoid alimony. And it doesn’t stop there. One former NFL player began paying spousal support only after he was forced to spend several days in jail for avoiding paying his former spouse.

After the breakup of a marriage, it is not uncommon for people to find their financial situation has changed dramatically with new expenses and obligations piling up. Divorce leads to unexpected legal expenses, changes in living arrangements, and costs associated with the division of marital property. According to Forbes, the average contested divorce costs between $15,000 and $30,000, with some being far more expensive.

Clients who are making spousal or child support payments often feel as though the payments are unduly burdensome and are otherwise unhappy with the terms of their divorce decree. It is no surprise then, many of these individuals turn to bankruptcy for relief. This is where family law and bankruptcy meet. One of the questions commonly received by bankruptcy attorneys is whether a client, in these circumstances, can discharge his or her spousal and child support obligations through bankruptcy.  Unfortunately for these clients, in most cases, the answer is “no.”

Personal bankruptcy through Chapter 7 or Chapter 13 of the Bankruptcy Code can be a very effective way of shedding debt and allowing a client to move forward with a fresh start. Our legal system has evolved from an earlier time in American history when people who could not pay their debts were sent to prison. And while the lay person often thinks of bankruptcy as providing a clean slate, some types of debt, including alimony and spousal support, cannot be wiped away or restructured in bankruptcy.

Broadly speaking, there are two types of debt when it comes to bankruptcy. The first is the dischargeable kind, which includes credit card debt, mortgage debt, medical bills, and utility bills. The second is the nondischargeable type, which, along with domestic support obligations like alimony and child support, also includes most taxes and often student loans.  Because of the overriding public policy favoring the enforcement of familial obligations, bankruptcy law leaves little discretion to the courts when it comes to the dischargeability of domestic support obligations.

The reasoning for this hard line on domestic support obligations like alimony and child support is twofold. First, bankruptcy is a matter for the federal courts and matters involving marriage, divorce, and child support are governed by the state courts.  Second, Congress has deemed child and spousal support to be too important to be dischargeable.  As the Ninth Circuit has explained, “Bankruptcy provides a way to leave one’s debts, but not one’s most fundamental family obligations, behind.”  In re Rivera, 832 F.3d 1103, 1106 (9th Cir. 2016).

Balancing the competing policies of allowing the honest, but unfortunate debtor a fresh start, and the public policy favoring the enforcement of familial obligations, Congress enacted the following two exceptions to the discharge provided to individual debtors under Chapter 7 and 13 of the Bankruptcy Code. The first is set forth in 11 U.S.C. § 523(a)(5), which states that “domestic support obligations” cannot be discharged in bankruptcy.  Courts have constantly held that the term domestic support obligations includes child support and alimony, but have extended it to include other obligations upon which family members and former family members rely. The second is set forth in 11 U.S.C. § 523(a)(15), which provides that a debt to a “spouse, former spouse, or child of the debtor” incurred by the debtor in the course of a divorce or separation is not dischargeable in bankruptcy. The critical issues here are the identity of the payee and whether under state law, the debt was incurred in the course of a divorce or separation.

While the language of 11 U.S.C. § 523(a)(5) and (15) are fairly broad, they are not without limitation. For instance, courts have held that obligations to third-parties, even if set forth in the divorce decree, may be discharged because the debts are owed to a third-party and not the spouse, former spouse, or child of the debtor. Similarly, property settlement payments may be dischargeable when they are merely affecting an equitable division of community property and not providing domestic support.

And divorcing spouses should beware that simply labeling a payment as spousal support or alimony in a divorce decree does not necessarily make it nondischargeable in bankruptcy. Rather, the bankruptcy court will look to whether the payment obligation is really for the support of the former spouse or child or was incurred in the course of the divorce or separation irrespective of what the payment is labeled in the divorce decree.

Thus, while spousal support payments and other payment obligations incurred in a divorce proceeding are usually not dischargeable in a bankruptcy – no matter how creative one gets – the best practice is to consult with a bankruptcy attorney before filing to make sure that the client doesn’t just end up back in family court.

Nedda Ghandi, Esq., is the founding partner of Ghandi Deeter Blackham Law Offices. A Nevada native, Ghandi is a graduate of the University of Nevada, Las Vegas William S. Boyd School of Law and has practiced law in Las Vegas for 9 years. Ghandi has written numerous articles for publications concerning interesting developments in the law, and has been selected as a member of Nevada’s Legal Elite and as a Super Lawyer every year since 2013. Ghandi Deeter Blackham specializes in family law, bankruptcy, guardianship, and probate. Consultations may be scheduled by calling 702.878.1115 or visiting http://www.ghandilaw.com.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

 

 

The Parting Advice of Justice Richard Posner

Link: http://www.vegaslegalmagazine.com/parting-advice-justice-richard-posner/

Article:

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

“I pay very little attention to legal rules, statutes, and constitutional provisions.”

-Richard Posner1

After authoring more than 3,300 judicial opinions, Richard Posner suddenly retired from the United States Court of Appeals for the Seventh Circuit in September of 2017.  An unofficial “exit interview” Posner granted to the New York Times affirmed the common knowledge of generations of attorneys: A great attorney knows the judge. Although not hostile to the judicial system, Posner’s exit interview reveals that courts rely on past precedent far less than practicing litigators would hope.

Litigators of all stripes inevitably contact an opinion authored or influenced by Justice Posner. The former Chief Justice of the United States Court of Appeals for the Seventh Circuit, and previously under consideration for the United States Supreme Court, Posner’s distinctive writing style was second only to the late Antonin Scalia.  Upon his 1981 appointment to the Court of Appeals, Posner’s interest in economics (he previously was an assistant to the Commissioner of the Federal Trade Commission) came to bear on his rulings at the same time that financial services and securities became a more prominent part of the country’s economy.

Today, Posner is recognized as being one of the leading voices advocating law and economics, grappling with the research of Nobel Prize recipients such as Ronald Coase and Gary Becker in his opinions and other writing. From 2004 until Gary Becker’s 2014 death, both Posner and Becker contributed regularly and prolifically to their joint blog.2 Posner’s non-judicial writing reached far beyond that realm, though, grappling with subjects including national security, literature, and—most relevantly—judicial thinking.

In his observation of judges, Posner notes that some “are, you know, reactionary beasts.”  Posner explained: “They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way.” Despite this observation, Posner notes the “very strong formalist tradition in the law,” where judges sincerely apply the Constitution and relevant statutes—unless they themselves are unconstitutional—as if sacrosanct.

Where statutes, precedent, and even the Constitution do not matter, effective presentation steps into the breach. “A case is just a dispute. The first thing you do is ask yourself – forget about the law – what is a sensible resolution of this dispute?” Hardly an endorsement of “feels-over-reals” emotion-driven legal consequentialism, Posner’s view acknowledges the reality that the law will rarely permit an absurd result.

Within his interview, Posner acknowledges how this is done. In determining whether some precedent or other legal requirement obstructs a desired ruling, Posner notes “that’s actually rarely the case.” “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.” Just one more thing that law schools do not teach their students.

When in private practice, one of the sitting district judges for the United States District Court for the Western District of New York had a sign in his office that read, “whoever tells the best story wins.” Posner’s exit interview confirms the accuracy of this advice, even amidst all the disillusionment it may bring to legal formalists. This advice—also the title of Annette Simmons’ book about communicating more effectively—is regularly repeated by trial lawyers and more experienced litigators, but so infrequently ingrained in younger attorneys.

Posner’s advice is not a panacea. While well-regarded and even admired by many, Posner was a firebrand in his later years. In a July 2017 interview with Slate, Posner went out of his way to critique several Supreme Court justices, living and dead, decrying Brennan, Blackmun, Stevens, and Souter as “not giants.”3 “Anyone think there’s a giant or giantess on the Supreme Court today?” Posner asked before he abruptly retired, slipping out from under the specter of being reversed by the country’s highest court.

What the now-former justice recommends may not be advisable before every judge. Some of them, if not many or even all, will decide a motion or even an entire case based on the applicable subsection buried deep within the Code of Federal Regulations.4 His parting commentary vindicates so much of what experienced litigators have told and tried to train dozens if not hundreds of other attorneys to do, though, that it can hardly be ignored.

Malcolm (“Jay”) DeVoy is the owner of DeVoy Law P.C. DeVoy focuses on providing representation in commercial disputes, serious personal matters, and advising medical professionals and practices about issues including HIPAA, Stark Law, and the Anti-Kickback Statute.

  1. Adam Liptak, An Exit Interview with Richard Posner, Judicial Provocateur, The New York Times (Sept. 11, 2017).

2 The Becker-Posner Blog, available at becker-posner-blog.com (last accessed Sept. 12, 2017).

3 Joel Cohen, Should There Be Age Limits for Federal Judges?, Slate (July 5, 2017), available at  http://www.slate.com/articles/news_and_politics/jurisprudence/2017/07/should_there_be_age_limits_for_federal_judges.html (last accessed Sept. 13, 2017).

4 See, e.g., Gardner v. Henderson Water Park, LLC, 133 Nev. Adv. Op. 54 (2017); Nationstar Mortgage, LLC v. SFR Investment Pool 1, LLC, 133 Nev. Adv. Op. 34  (2017).

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.