On July 8, 2015, the Centers for Medicare & Medicaid Services (“CMS”) released proposed regulations “to reduce burden and to facilitate compliance” under the physician self-referral law known as the Stark Law. See 80 Fed. Reg. 41686, 41910 (July 15, 2015). The proposed rule, if finalized, would clarify some regulations, relax certain technical requirements and create new exceptions. In a larger sense, however, the proposed rule provides only small relief for small and minor violations. Absent more, the self-referral law and its implementing regulations will remain “an impenetrably complex set of laws and regulations”1 that can ruin a provider that missteps. Accordingly, providers should maintain a high degree of vigilance in seeking to ensure compliance with the Stark Law.
The proposed self-referral regulations are part of a much larger 279-page proposed rule that includes revisions to payment policies under the Medicare Physician Fee Schedule (“MPFS”), and other revisions to Part B for CY 2016. See 80 Fed Reg. 41686 (July 15, 2015). Taken as a whole, the proposed rule updates payment policies, payment rates, and quality provisions for services furnished under the MPFS on or after January 1, 2016. Reed Smith’s summary of the other provisions of the proposed MPFS rule is available here.
This Alert focuses on the proposed changes to the Stark Law regulations. CMS is soliciting comments on the proposed rule until 5 p.m. September 8, 2015. Below, we summarize the changes and consider their implications, and identify possible areas for comment.
In the explanatory text that accompanies the proposed regulations, CMS states that there is no substantive difference among the writing requirements for the various compensation exceptions that require a writing; no requirement for a particular kind of writing; and thus no requirement for a formal contract. CMS explains further that, depending on the facts and circumstances, a “collection of documents,” including contemporaneous documents evidencing the course of conduct between the parties, may suffice. 80 Fed. Reg. 41915. CMS provides no specific guidance or examples to elucidate when a collection of documents could satisfy the writing requirement. Presumably, however, such contemporaneous documentation could include emails, correspondence and file memoranda.
Existing exceptions for space rentals, equipment rentals and personal services arrangements all specify that the arrangement must have a term of at least one year. Consistent with its view that there is no requirement for a formal contract, CMS clarifies that the requirement for a one-year term does not mean that the arrangement must include an explicit provision setting forth a term of at least one year. Rather, the requirement can be satisfied as long as there is some contemporaneous documentation establishing that the arrangement in fact lasted for at least one year, or that the parties did not terminate the arrangement during the first year and enter into a new arrangement for the same space, equipment or services during that same first year. 80 Fed. Reg. 41916.
Existing exceptions for space rentals, equipment rentals and personal services arrangements permit a “holdover” arrangement for up to six months if an arrangement of at least one year has expired, if the arrangement continues on the same terms, and if the arrangement otherwise satisfies the requirements of the exception. The proposed rule would permit indefinite holdovers as long as the arrangement continues on the same terms and conditions as the original agreement, and as long as all elements of the applicable exception continue to be satisfied during the holdover period. Alternatively, CMS proposes to extend the holdover period from six months to a longer definite period as long as the same safeguards are met: the arrangement continues on the same terms and continues to satisfy all requirements of the exception during the holdover period. CMS emphasizes that the arrangement must meet the applicable fair market value requirement when the arrangement expires, and on an ongoing basis during the holdover period.
Multiple exceptions require that an arrangement be signed by the parties. Under the current regulations, if the failure to comply with the signature requirement is inadvertent, the parties must obtain the required signatures within 90 days. Where the failure was not inadvertent, the parties must obtain the required signatures within 30 days. The proposed regulation would give the parties 90 days to obtain the missing signature across the board; however, an entity could make use of this exception only once every three years for the same referring physician.
Currently, under 42 C.F.R. § 422.354(c)(3)(i), physicians who have an ownership or investment interest are required to stand in the shoes of their physician organization, and other physicians with a compensation arrangement with a physician organization (e.g., employees and independent contractors) are permitted to stand in the shoes of their physician organization. CMS proposes to amend this subsection to clarify that all physicians in a physician organization (not just those who stand in the shoes of the physician organization) are considered parties to a compensation arrangement between the physician organization and the DHS entity for all purposes, except satisfying signature requirements. Most notably, this means that referrals from all physicians in the physician organization must be considered when evaluating whether a physician organization’s compensation arrangement with a DHS entity takes into account the volume or value of referrals. In the proposed rule, CMS also clarifies that, for purposes of the signature requirements, only those physicians who stand in the shoes of their physician organization are considered parties to an arrangement. The signature requirement for those physicians in multiple exceptions would be satisfied when the authorized signatory of the physician organization has signed the writing.
Under the Stark Law, the provision of items, devices, or supplies that are “used solely” to collect, transport, process, or store specimens for the entity providing the items, devices, or supplies, or to order or communicate the results of tests or procedures for such entity, does not create a compensation arrangement triggering the Stark Law’s referral prohibition. CMS proposes to revise the definition of “remuneration” at 42 C.F.R. § 411.351 to clarify that, as long as the items, devices, or supplies are furnished for any of the purposes listed in the regulation, and not for any other purpose, the provision of the item does not constitute remuneration.
In the preamble to the proposed rule, CMS responds to the 3rd Circuit Court of Appeals decision in United States ex rel. Kosenske v. Carlisle HMA, 554 F.3d 88 (3d Cir. 2008). In Kosenske, the 3rd Circuit held that a physician’s use of a hospital’s resources (exam room, nursing personnel, supplies) when treating hospital patients constituted remuneration under the Stark Law (and therefore created a financial relationship between the physician and the hospital), even though the hospital billed the payor for those services and the physician only sought reimbursement for professional fees. CMS states its view that a physician’s use of a DHS entity’s exam and procedure rooms, nursing and other non-physician personnel and supplies when treating patients does not constitute remuneration under the self-referral law, where the physician bills the payor only for professional fees, and the DHS entity bills the payor for its services.
The rental of office space exception requires, among other things, that the office space rented or leased must be used exclusively by the lessee when being used by the lessee (and cannot be shared with or used by the lessor or any other person or entity related to the lessor). Acknowledging that timeshare leases could make it easier for needed specialists to serve rural areas, and recognizing that timeshare agreements may not fit easily within the existing rental of office space exception, CMS proposes to allow timeshare arrangements with physicians, where the physician organization or hospital is the licensor. However, the proposed timeshare leases must meet several requirements, including a written arrangement and compensation set in advance, among others.
CMS also proposes to permit hospitals, Federally Qualified Health Centers (“FQHCs”), and Rural Health Centers (“RHCs”) to provide remuneration to physicians to recruit nonphysician practitioners. However, CMS imposes several limits. For example, the nonphysician practitioner must be a bona fide employee of the physician, meet certain geographical requirements, and must provide primary care services.
In the course of describing this proposed exception, CMS discusses the requirement, contained in numerous Stark Law exceptions and in the definition of an indirect compensation arrangement, that compensation may not “take into account” the volume or value of referrals. CMS notes that it has developed a uniform interpretation of the volume or value standard, but that the Stark Law regulations continue to use different language formulations (“takes into account,” “based on” and “without regard to”). Accordingly, CMS proposes consistently to use the phrase “take into account” in connection with the volume or value standard throughout the Stark Law regulations.
An existing Stark Law exception allows a physician to refer to an entity, as long as that physician owns securities in the entity that are publicly traded. The publicly traded securities exception currently requires (among other things) that the securities must be (a) listed for trading on the New York Stock Exchange, the American Stock Exchange, or any regional exchange in which quotations are published on a daily basis; or (b) foreign securities listed on a recognized foreign, national, or regional exchange in which quotations are published on a daily basis; or (c) traded under an automated interdealer quotation system operated by the National Association of Securities Dealers (“NASD”). Given that the NASD no longer exists, and that it is no longer possible to purchase a publicly traded security traded under the automated interdealer quotation system NASD formerly operated, CMS proposes to revise the publicly traded securities exception to include securities listed on electronic stock markets or over-the-counter quotation systems, as long as quotations are published on a daily basis and trades are standardized and publicly transparent. CMS is soliciting comment on further restrictions to publicly traded securities.
The Affordable Care Act (“ACA”) eliminated the Stark “whole hospital” exception, except for certain grandfathered physician-owned hospitals, and limited the percentage of physician investment in any such grandfathered physician-owned hospital to its level on March 23, 2010. Prior CMS guidance required calculation of the maximum percentage of physician investment based on the investment level of referring physicians only. In the proposed rule, CMS proposes to change the definition of ownership or investment interest such that all physician owners or investors, regardless of whether they refer patients, would be included for purposes of this calculation. The ACA also revised the Stark “whole hospital” exception to require that a physician-owned hospital disclose the fact that the hospital is partially owned or invested in by physicians on any public website for the hospital and in any public advertising for the hospital. CMS proposes to clarify the types of websites that would constitute a public website and the types of advertising that would constitute public advertising for purposes of this disclosure, and the types of statements that would provide sufficient disclosure.
CMS acknowledges that the Stark Law and the aims of the ACA are not always consistent. The ACA provides broad authority to test new Medicare payment models and encourages new health care delivery models, such as accountable care organizations (“ACOs”). CMS seeks comment on how to reform the Stark Law so that it does not interfere with innovative health care delivery and payment models and integrated approaches to health care. Specifically, CMS seeks suggestions on how to revise the law so as to prevent it from impeding the development of relationships with physicians that could facilitate a more integrated approach to care as envisioned by health reform.
While the proposed regulations provide some clarifications of existing rules, the fact remains that the Stark Law is still too complex, too unwieldy, and too susceptible to differing interpretations.2 Nothing demonstrates this more than the recent 4th Circuit decision in United States ex rel. Drakeford v. Tuomey Healthcare System, Inc., No. 13-2219, 2015 WL 4036166 (4th Cir. July 2, 2015).
In Tuomey, the court sustained a $237 million judgment against a hospital system for providing compensation that was determined to vary with the value of referrals. Tuomey entered into part-time employment arrangements with physicians to perform outpatient surgeries only at the hospital. In addition to their base salaries, the physicians received an 80 percent productivity bonus, as well as a 7 percent incentive bonus. The amount that was ultimately paid to the physicians exceeded what was collected for their professional outpatient surgical services, and they continued to maintain private practices. Before finalizing the arrangement, Tuomey had sought advice from multiple, experienced, health care regulatory counsel.
Although the proposed regulations provide some clarifications, uncertainty remains with regard to several key concepts. For example, while the preamble explains that the writing requirement that exists in several important exceptions may, depending on the facts and circumstances, be satisfied by “a collection of documents, including contemporaneous documents evidencing the course of conduct between the parties,” CMS provides no indication of the specific circumstances or examples of the types of documents that would suffice. Given that the exceptions generally also require that the compensation must be set in advance, and that the arrangement must be signed by the parties, it would be helpful if CMS would provide some examples of scenarios for which a collection of documents adequately demonstrates compliance with all of the requirements of an exception.
Further, despite significant discussion in the preamble concerning the volume or value standard, CMS fails to provide any meaningful insight as to when compensation would be regarded as taking into account or varying with the volume or value of referrals. Such guidance is urgently needed in the wake of Tuomey. Because a physician’s personally performed services are explicitly carved out of the definition of “referral” in the Stark Law regulations, many would not typically view payments to a physician for personally performed services as varying with or taking into account the physician’s referrals. Yet, in Tuomey, such payments for personally performed professional services were determined to vary with the volume or value of referrals. As a result, without more guidance from CMS, providers will not know when payments based on a physician’s personally performed services create insurmountable Stark Law problems.
Because the Stark Law is a strict liability statute, the relaxation of technical requirements and the interpretive guidance may, in some cases, help providers avoid violations resulting from the occasional inadvertent error. Certainly, the proposed rule, if finalized, could be helpful in avoiding some violations of the statute, e.g., where providers become timely aware that a signature is missing or that an agreement has expired inadvertently.
Providers should take note that the relaxation of certain requirements is not removal of the requirements. The best course will be for providers to remain on guard and maintain fastidious procedures for physician contracting. As CMS states, “a single written document memorializing the key facts of an arrangement provides the surest and most straightforward means of establishing compliance with the applicable exception.” 80 Fed. Reg. 41915. Absent careful attention to satisfying all of the requirements of an exception at all times, it is too easy for a provider to fall out of compliance with the self-referral law.
Fair market value, for example, is a critical requirement for almost all of the exceptions. Providers who permit agreements to expire may still have a sufficient arrangement for Stark purposes if all terms and conditions remain the same. However, if they fail to assess continuously whether compensation paid still meets fair market value requirements, the arrangement may still end up violating the anti-referral law if, over time, the compensation no longer reflects fair market value for the actual services performed.
CMS’ solicitation of comments on the impact of the Stark Law on health care delivery and payment reform is encouraging. The Stark Law has proved to be among the legal barriers to achieving the clinical and financial integration that will facilitate effective population health management and success under new and emerging payment models involving governmental and commercial payors. One example is the change to the definition to “remuneration” in this proposal that appears to signal that CMS is conscious that new bundled or global payment arrangements are emerging, that it believes must not overlook Stark rule scrutiny. Given CMS’ low bar for identifying when abuse may exist and its historical reluctance to provide meaningful relief from the Stark Law where it perceives any risk of abuse, skepticism about whether these barriers will be lowered – or will remain an obstacle to reform – is understandable. Nevertheless, health industry participants should take advantage of the opportunity the proposed rule affords to educate CMS concerning the practical problems caused by the Stark Law, and why it is an obstacle to achieve the aims of health reform.
United States ex rel. Drakeford v. Tuomey, No. 13-2219, 2015 WL 4036166 (4th Cir. July 2, 2015) (Wynn, Circuit Judge, concurring).
“It seems as if, even for well-intentioned providers, the Stark Law has become a booby trap rigged with strict liability and potentially ruinous exposure – especially when coupled with the False Claims Act.” United States ex rel. Drakeford v. Tuomey, No. 13-2219, 2015 WL 4036166 (4th Cir. July 2, 2015) (Wynn, Circuit Judge, concurring).
Offices: Philadelphia Princeton Tysons Washington, D.C.


**This article was prepared and part of the materials for the March 2016 California Appellate Defense Counsel Conference. It explores some of the ethical challenges confronting appellate counsel representing parents and children in dependency matters.
First, does appellate dependency counsel have an ethical obligation to file a writ petition for ineffective assistance of trial counsel or is it sufficient to argue ineffective assistance as part of the appeal? (See In re N.F. (Cal. Ct. App., June 29, 2010, D055922) 2010 WL 2594747 and Kemper v. County of San Diego (2015) 242 Cal.App.4th 1075, as modified on denial of reh'g (Dec. 28, 2015), review filed (Jan. 14, 2016).
After discussing these hypotheticals, this article will review a few other special situations that apply to appellate dependency counsel.
Hypothetical #1: When does appellate counsel have an ethical duty to file a writ petition for ineffective assistance of counsel?
See, In re N.F. (Cal. Ct. App., June 29, 2010, D055922) 2010 WL 2594747 and Kemper v. County of San Diego (2015) 242 Cal.App.4th 1075, as modified on denial of reh'g (Dec. 28, 2015), review filed (Jan. 14, 2016).
Mother was a 16-year-old minor living in Compton with her boyfriend at the time her infant daughter was removed from her care in San Diego while visiting the maternal grandmother. The petition was filed in San Diego. Mother was not present at the detention, jurisdiction, or dispositional hearings. Shortly thereafter, Mother contacted the social worker and a hearing was set one month later to appoint an attorney. Because the case was filed prior to January 1, 2009, the court was required to appoint a guardian ad litem for the mother at the initial hearing. (Former CCP §§ 372, subd. (a), 373; In re D.D. (2006) 144 Cal.App.4th 646, 653; In re A.C. (2008) 166 Cal.App.4th 146, 155.) However, at the hearing, Mother’s appointed counsel (Attorney #1) told the court that Mother didn’t need a GAL and no appointment was made.
During the reunification period, Mother was a considered a runaway, living in LA with her boyfriend and his parents, and refused to live with her parents in San Diego, who had drug problems. Mother minimally participated in services, visited her child only seven times out of 26 visits, and was pregnant again. The court terminated reunification services at the six month review hearing in February 2009 (Attorney #2). Mother filed a notice of intent to file a writ petition, but appointed counsel (Attorney #2) and his supervisor (Supervisor #3) declined to file it.
Meanwhile, Mother was arrested for burglary, made a dependent of the LA juvenile court, placed in foster care, and gave birth in April 2009. Mother’s case was transferred to another attorney in the same office (Attorney #4). After reviewing the file, Attorney #4 requested that Supervisor #3 transfer the case to an independent attorney, believing there had been substantial problems with the legal representation in the case. Supervisor #3 declined the transfer and told Attorney #4 to file a petition for modification instead.
In May 2009, Mother was doing well in foster care and filed a petition for modification requesting her child be returned to her. In August 2009, mother filed a second petition for modification seeking to dismiss the dependency and have the child returned because the court erred by failing to appoint a GAL at the detention hearing. After granting a hearing, the juvenile court found a GAL should have been appointed for Mother and the error was not harmless. However, it denied the petition because the requested modification was not in the child’s best interests. The juvenile court also found Mother had shown changed circumstances but had not shown it was in the child’s best interests to be placed with her. Then it terminated parental rights.
On appeal, in addition to arguing the failure to appoint a GAL resulted in a miscarriage of justice, mother argued trial counsel was ineffective. Mother claimed trial counsel (1) failed to challenge the jurisdictional findings under section 300, subdivision (g); (2) waived appointment of a guardian ad litem on her behalf; and (3) failed to raise these issues in a writ petition. Mother did not file a writ petition.
Did appellate counsel have an ethical duty to file a writ petition for ineffective assistance of counsel?
What are your ethical duties if the case was filed in the Third or Fifth District Court or Appeal and a petition to expand your appointment is denied?
On appeal, Mother’s IAC argument was rejected because the record did not affirmatively establish that counsel had no rational tactical purpose for the challenged act or omission. (In re N.F. (Cal. Ct. App., June 29, 2010, D055922) 2010 WL 2594747.) It also found there was no showing that the outcome, termination of parental rights, would have been different had counsel been effective.
While the case was pending on appeal, Mother filed a malpractice action against Attorneys #1 and #2, as well as Supervisor #3.
In the malpractice action, defendant’s motion for summary judgment was granted based on the collateral estoppel rules, holding that Kemper was precluded from relitigating the determination made by the N.F. court that Kemper's “parental rights were terminated as a result of her own actions, and not as a result of her attorneys' conduct.” The trial court also rejected Kemper's arguments that collateral estoppel does not apply because Kemper did not previously bring an ineffective assistance claim through a habeas corpus petition, and/or that Kemper's “new legal theories” preclude the collateral estoppel bar.
The court then explained that there was no exception to the collateral estoppel doctrine based on an analogy to the habeas corpus procedure in juvenile dependency cases because a habeas petition seeks to protect a parent’s fundamental liberty interest, which does not apply in a civil malpractice action. The habeas petition is brought as part of the dependency action, thus there is no collateral estoppel bar.
Hypothetical #2: What are your ethical obligations when your client, the child, tells you that his wishes are different than trial counsel’s recommendations and arguments in the trial court? Do your ethical obligations change based on the age of the child?
You are appointed to represent a 16 year-old minor on appeal from a dispositional hearing where the minor is removed from her mother and placed in foster care with reunification services. The minor tells you that she wants to return home. After conferring with the minor and reviewing the record, you make an independent determination that the court erred when it removed the minor from her mother and it is in the minor’s best interests to return home. However, the minor’s trial counsel, who is also her CAPTA guardian ad litem, argued in the trial court that it was in the minor’s best interests to remain in foster care. When you contact minor’s counsel, he continues to hold the same position.
Counsel appointed for the minor in the trial court is typically also appointed as "guardian ad litem" for the minor(s). (Welf. & Inst. Code § 326.5 and Rule 5.662. Rule 5.662(d) states: "(d) General duties and responsibilities-The general duties and responsibilities of a CAPTA guardian ad litem are: (l)To obtain firsthand a clear understanding of the situation and needs of the child; and (2) To make recommendations to the court concerning the best interest of the child as appropriate under (e) and (f)." The appellate courts have taken the position that the CAPTA GAL also manages the appellate litigation.
In Felicity S., the child’s appellate counsel determined that it was in the child’s best interests to return home to her mother and briefed the issue on that basis. (In re Felicity S. (Cal. Ct. App., Nov. 26, 2013, A137439) 2013 WL 6199269, at *10, as modified on denial of reh'g (Nov. 26, 2013), ordered not to be officially published (Nov. 26, 2013).) The appellate court was not pleased and attempted to sanction appellate counsel. In re Felicity S. (2014) 225 Cal.App.4th 1389, 1391, as modified (May 23, 2014), ordered not to be officially published (Aug. 20, 2014).) Although appellate counsel was ultimately not sanctioned, the proceedings raised serious issues about the independence of appellate counsel and the ability to represent minors on appeal without fear of sanctions when appellate counsel determines, based on the record and communication with her client, that it is in her client’s best interests to take a position on appeal that is different than the position of trial counsel.
Hypothetical #3: What are your ethical duties to your client and the court when you have no contact with your client?
As soon as you receive the record, you send your introductory letter to your client, the mother, at her last known address. The letter is returned unclaimed. You contact mother’s trial counsel and learn that trial counsel filed the notice of appeal and mother was not present at the section 366.26 hearing where her parental rights were terminated. However, in reviewing the record, you believe you have some meritorious issues. Do you file an opening brief despite no contact with mother? Do you keep sending service letters to your client knowing that they will be returned or can you serve your client’s trial counsel instead? Do you request oral argument?
Finally, we are troubled by this appeal. At oral argument, counsel for mother acknowledged that she has had no contact with mother, her client. (fn. 3) Neither counsel nor the agency has been able to locate mother. Mother's attorney stated that she had some contact with mother's trial counsel, who filed and signed the notice of appeal on behalf of mother, but appellate counsel had no contact with her client. We recognize that an appeal from the order terminating parental rights does not require the notice of appeal to be authorized by the parent, as is required in a writ petition to review an order to set a section 366.26 hearing. (See Cal. Rules of Court, rule 8.450(e)(3).) However, it is troubling that counsel has chosen to pursue an appeal that is borderline frivolous on behalf of a nominal client.We appreciate that appellate counsel for parents in dependency cases frequently find themselves in the position of representing a client whose whereabouts are unknown. In such situations, counsel clearly have an obligation to pursue vigorously issues that affect the rights of the parents. However, [198 Cal.App.4th 1547] dependency proceedings involve children who have been abused or neglected and a delay will generally be detrimental to the child. Thus, counsel have a heightened responsibility not to pursue issues of questionable merit, especially at the stage where the lower court has terminated parental rights and the child's interests are of paramount importance. Here, despite receiving no direction from her client and despite being aware of her client's apparent abandonment of any relationship with her child, counsel pursued a marginal appeal. For counsel, who has no reason to believe her client has any interest in this appeal, to take it upon herself to try to reverse the finding of adoptability, which was supported by the opinion of five experts, and thereby prevent P.C.'s chance of having an adoptive parent, raises, in our view, a significant ethical issue. This ethical issue, however, is one that may be unique to the dependency process and not directly addressed by the canons of professional conduct.
fn. 3 We note that counsel's request for oral argument is unusual. Unless the appeal in a dependency case raises a unique or compelling issue, counsel for parents normally forego requesting oral argument. In appeals from orders terminating parental rights, counsel are normally sensitive to the importance of having the case resolved as quickly as possible and recognize that requesting oral argument generally delays the issuance of an appellate court's decision.
Juvenile case files are confidential and may only be inspected by certain persons. (Welf. & Inst. Code § 827.) In addition, some records may be sealed under Rule 8.46. Therefore, appellate counsel must ensure the records remain confidential throughout the proceeding and when returning the record to the client. If a record contains material that is sealed or should be sealed, appellate counsel should ensure that the client is not provided access to the sealed materials. Also, Identity of mandatory reporters (Pen. Code, § 11167) and names and addresses of foster parents may be confidential. (See e.g. Welf. & Inst. Code, § 308(a), Cal. Rules of Court, rule 5.715, 5.720, 5.725.) If the information, such as a foster parent’s address, can be easily redacted, appellate counsel may redact the record. Otherwise, appellate counsel may file a motion in the appellate court requesting counsel be provided with a new record that is properly redacted.
There are special considerations when retaining a juvenile dependency case file because previous dependency cases may impact current and future dependencies (See e.g. Welf. & Inst. Code, § 361.5, subds. (b)(10), (b)(11).) If you cannot return the file to your client, then consider maintaining a copy of the file in some form for the life of the client.
If you have not read this case, read it now to see how not to write an appeal.
Every ethics problem boils down to “How can I best protect and represent my client while simultaneously promoting respect and confidence in the legal profession?” It sounds easy, but as the above situations illustrate, there are not always easy answers and reasonable minds can disagree in some situations. But you’ll be prepared as long as you discuss your situation with your colleagues, periodically review the California Rules of Professional Conduct, and keep going to ethics presentations.


TONJA WRIGHT VERSUS NATIONAL INTERSTATE INSURANCE CO., ET AL.
COUNSEL: [*1] For Tonja R. Wright, individually and on behalf of her minor son N.J., Plaintiff: John Bartholomew Kelly, III, LEAD ATTORNEY, Amy Collins Fontenot, Jeanne K. Demarest, Kurt A. Offner, Roderick Alvendia, Alvendia, Kelly, & Demarest, LLC, New Orleans, LA.
For National Interstate Insurance Company, Mabe Trucking Company, Inc., Terry Tearle Poole, Defendants: Guy D. Perrier, LEAD ATTORNEY, Mitchell D. Monsour, Jr., Nathan M. Gaudet, Perrier & Lacoste, LLC, New Orleans, LA.
For Allstate Insurance Company, Defendant: David Henry Kennedy, LEAD ATTORNEY, Law Offices of Harold G. Toscano (Metairie), Metairie, LA.
JUDGES: ELDON E. FALLON, United States District Judge.
Before the Court are two motions in limine. First, Plaintiff seeks to exclude portions of the medical records involving a second, separate automobile accident that occurred after the instant accident in question but before her cervical fusion surgery that allegedly resulted from her first accident. See Doc. Rec. 32. Second, Defendants seek to introduce a letter, addressed to Geico Insurance, written by Plaintiff’s counsel, regarding the second automobile accident. See Doc. Rec. 21. The Court held oral argument [*2] on these matters on August 23, 2017. Having considered the parties’ arguments, submissions, and applicable law, the Court now issues this Order and Reasons.
This case arises out of an automobile accident. On September 9, 2015, Plaintiff Tonja Wright was operating her 2011 Ford Escape in Tangipahoa Parish, Louisiana, when she was struck by a 2015 Kenilworth trailer owned by Mabe Trucking Company and operated by Terry Poole. Rec. Doc. 1-1 at 2. Wright also brings this case on behalf of her minor son Noah Jackson, who was travelling with her in the car at the time of the alleged accident.
Plaintiff filed suit in state court on August 23, 2016, seeking damages for past and future mental and physical pain and suffering, property damage, loss of use of vehicle, depreciation, rental expenses, medical expenses, loss of past earnings, loss of future earning capacity, disability, scarring and disfigurement, loss of consortium, and penalties and attorneys’ fees. Rec. Doc. 1-1 at 1, 4. In her pleading, Plaintiff referred to her injuries as “severe and disabling,” without elaborating on the nature of the injuries. Id. at 3. On November 1, 2016, Defendants received medical records in response [*3] to a subpoena that indicated Plaintiff had undergone cervical fusion surgery. Rec. Doc. 1 at 4.
Prior to her surgery on August 2, 2016–allegedly resulting from the car accident in question–Plaintiff was involved in another motor vehicle accident and was seen in the emergency room of Lallie Kemp Hospital on May 26, 2016. Plaintiff claims that the 2015 accident, the instant dispute, caused her to need a cervical fusion at the C4-C6 levels, which was performed on August 2, 2016. Meanwhile, Defendants assert that Plaintiff’s alleged injuries and damages resulted from a separate, intervening or superseding event–the later 2016 accident. Thus, Defendants seek, and Plaintiff attempts to exclude, evidence related to this later car accident.
Plaintiff seeks to preclude testimony from that hospital record involving the 2016 accident, specifically portions where Plaintiff allegedly stated: “I was supposed to have surgery on my neck and chose not to.” Rec. Doc. 32-2 at 2. Plaintiff denies that she told the hospital that she chose not to have the surgery. Id.
Plaintiff proffers two reasons to exclude this portion of the medical record: (1) it is hearsay, [*4] as well as hearsay within hearsay; and (2) its prejudicial value outweighs benefits. Id. at 2-3. Defendants oppose this motion, arguing that the medical record–certified authentic here–are covered by a hearsay exception under FRE 803(4) and 803(6). Rec. Doc. 37. Moreover, Defendants argue that the medical record is relevant and not prejudicial because it “has a tendency to disprove Plaintiff’s allegations concerning causation and does not cause the jury to make a decision on an improper basis.” Id. at 6.
Medical records are covered by a specific hearsay exception under Rule 803(4) of the Federal Rules of Evidence: “statements made for purposes of medical diagnosis or treatment[,]” under the conditions listed in that rule, are admissible even if the declarant is unavailable. The Supreme Court considers this exception to be a “firmly rooted” hearsay exception for purposes of the Confrontation Clause; statements made for medical diagnosis are considered particularly reliable. See White v. Illinois, 502 U.S. 346, 356 n. 8 (1992). Moreover, business records are covered by a hearsay exception under Rule 803(6) of the Federal Rules of Evidence, for records of regularly conducted activity. See United States v. Ismoila, 100 F.3d 380, 392 (5th Cir. 1996) (holding that the business records exception is a “firmly rooted” hearsay exception). Rule 803(6) provides a hearsay exception for records kept in the course of any regularly conducted business activity, [*5] which includes hospitals. Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir. 1991) (citing Ricciardi v. Children’s Hospital Medical Center, 811 F.2d 18, 22 (1st Cir. 1987). The admissibility of hospital records under this exception is supported by the presumption of reliability that attaches to statements relating to treatment and medical history in such records. Ricciardi, 811 F.2d at 22. Nonetheless, before admitting such statements, the Court needs to determine whether the statements were reasonably considered by the declarant as being pertinent to the diagnosis or treatment sought. Rock Huffco Gas & Oil Co., Inc., 922 F.2d 272, 278 (5th Cir. 1991).
Here, the medical record, authenticated by the hospital, was prepared in the regular course of business records of LSU Lallie Kemp Regional Medical Center and relevant to Plaintiff’s medical diagnosis. See Doc. 47-2 at 1 (“All entries were made by hospital personnel at the time of services rendered and during the regular course of hospital business.”). At the hearing, nonetheless, Plaintiff argued and emphasized that the second portion of the statement (“I was supposed to have surgery . . . and chose not to.”) is not relevant to medical diagnosis and thus does not fall under the hearsay exceptions. Not so. The medical record is relevant and reliable because it relates to Plaintiff’s symptoms, objective data, and surrounding circumstances that a reasonable physician [*6] would consider relevant in the treatment or diagnosis of a medical condition. It contains information regarding Plaintiff’s pain, past symptoms from her neck injuries, and its severity. Accordingly, the medical record is admissible under FRE 803(6) and 803(4), and is not prejudicial under FRE 403. Moreover, Defendant may also use the statement under FRE 607 to impeach the witness’s credibility, as well as under FRE 613 as a prior statement. Therefore, Plaintiff’s motion to exclude the medical record and its statement therein is DENIED.
Defendants further seek to introduce a January 23, 2017 letter written by Plaintiff’s counsel to Geico Indemnity Company concerning the subsequent May 26, 2016 accident involving Plaintiff. In response to the Notice of Records Deposition, Geico produced a letter of representation in which Plaintiff’s counsel advises Geico he was retained by Plaintiff to “represent her interest” concerning an accident on May 26, 2016. Also, the Geico production contains the instant January 23, 2017 letter from Plaintiff’s counsel to Krupen Amin, a claims adjuster for Geico and who will be called as a witness for Defendants. See Rec. Doc. 47-1 at 1. The letter [*7] references the nature of Plaintiff’s claimed injuries in the subsequent May 26, 2016 accident, and attaches a surgical report and bill from August 2, 2016. See id. Attached to the letter is “the surgical report and bill” and states Geico’s “policy limits are clearly exhausted.” Id. The letter then asks Geico to pay its policy limits. Id. The surgical report and bill are for Plaintiff’s August 2, 2016 cervical fusion. See id. at 2-9. Plaintiff opposes the motion under FRE 408 (as evidence regarding settlement or compromise), FRE 801(c)(3) (hearsay), and FRE 403 (prejudicial).
Generally, FRE 408 prevents the admission of information shared during settlement negotiations “to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement.” Fed. R. Evid. 408(a). In the instant case, however, the settlement correspondence, the letter, relates to a separate party, arising from a separate incident.
Rico v. American Family Insurance Group is instructive concerning Plaintiff’s argument. See 267 F.Supp. 2d 554, 557-58 (E.D. La. 2002), aff’d sub nom, Rico v. Am. Family Mut. Ins. Co., 76 Fed. Appx. 527 (5th Cir. 2003). In Rico, the Court allowed the testimony of a defense attorney who had defended a previous personal injury lawsuit brought by the plaintiff. Id. The attorney testified about “the general nature of the injuries [*8] which [the plaintiff] alleges he sustained in the prior lawsuit.” Id. at 558. The Court noted the “main defense” of the defendants was the plaintiff suffered the same injuries, in the accident before the Rico court, for which he previously sought compensation. Id. Thus, the Court found the defense attorney’s testimony was relevant to the defendant’s defense. In Rico, the defendant was allowed to enter testimony of a defense attorney in a previous personal injury suit to testify about “the general nature of the injuries which [the plaintiff] alleges he sustained in the prior lawsuit and the fact the prior lawsuit was settled.” Id. at 558. Nonetheless, the Rico Court noted the amount of the settlement was not disclosed, but the witness “merely testified about the injuries which [the plaintiff] claimed he sustained in the prior lawsuit.” Id. That testimony, the Court noted, was factual and thus allowed. Id.
Here, the letter addressed to and testimony by Geico representative Krupen Amin are relevant to Defendants’ defense that Plaintiff’s alleged injuries and damages were caused by “a separate, intervening, and/or superseding event.” Rec. Doc. 21-2 at 4. Moreover, FRE 408 is not applicable here because the settlement [*9] discussed therein is not between Plaintiff and Defendants, but rather a different party. The Fifth Circuit has developed a “loose ‘transactional’ test” to define “the claim” in Rule 408 and requires a dispute at least “arise out of the ‘same transaction'” in order to trigger Rule 408. Buckhanan v. Shinseki, 665 Fed. Appx. 343, 351 (5th Cir. 2016) (quoting Lyondell Chem. Co. v. Occidental Chem. Corp., 608 F.3d 284, 297 (5th Cir. 2010)). Contrary to Plaintiff’s assertion, there is no shared factual nexus. The 2016 accident is an entirely separate claim from the instant 2015 matter–involving a different defendant, location, and time. Accordingly, FRE 408 does not apply to preclude evidence arising from settlement discussions involving the latter 2016 accident.
Plaintiff further argues that the letter is hearsay evidence. Rec. Doc. 40 at 8. Indeed, while the letter is an out of court statement, the letter is specifically not hearsay pursuant to Federal Rule of Evidence 801(d) because this statement qualifies as an opposing party’s statement. Based on the letter of representation from Plaintiff’s counsel, Plaintiff’s counsel was acting in his representative capacity of Plaintiff concerning the 2016 accident when he advised Geico the August 2, 2016 surgery was caused by the 2016 accident. Generally, statements made by an attorney concerning a matter within his employment may be [*10] admissible against the party retaining the attorney. See Mercato Elisio, LLC v. Deveney, CV 15-563, 2016 WL 4181021, at *4 (E.D. La. Aug. 8, 2016) (“Because the letter is offered against [plaintiff], and was made by a party authorized by [plaintiff] to speak on the subject, it is not hearsay.”); see also Hanson v. Waller, 888 F.2d 806, 814 (11th Cir. 1989) (noting that Rule 801(d)(2)(C) “has been applied to allow in evidence statements made by attorneys in a representational capacity.”); Williams v. Union Carbide Corp., 790 F.2d 552, 555 (6th Cir. 1986) (“It is the general rule that ‘statements made by an attorney concerning a matter within his employment may be admissible against the party retaining the attorney.'” (quoting United States v. Margiotta, 662 F.2d 131, 142 (2d Cir. 1981), cert. denied, 461 U.S. 913 (1983)). Accordingly, the instant letter to Geico, drafted by Plaintiff’s counsel, is not precluded under the hearsay rule. Moreover, Defendants may use this letter under FRE 607 to impeach a witness at trial.
Finally, Plaintiff contends that the prejudicial nature of the letter outweighs its probative nature. Defendants, nonetheless, argue that Plaintiff’s injuries and damages arise, in part, from a separate, intervening incident. The instant letter is in regards to issues surrounding the 2016 subsequent accident. That information is central to Defendants’ case in chief and therefore relevant. Based on these reasons, Defendants’ motion [*11] is GRANTED.
IT IS ORDERED that Plaintiff’s motion in limine (Rec. Doc. 32) is hereby DENIED.
IT IS FURTHER ORDERED that Defendant’s motion in limine (Rec. Doc. 21) is hereby GRANTED.
New Orleans, Louisiana, this 25th day of August, 2017.
NATIONAL INDEPENDENT TRUCKERS INSURANCE COMPANY, RRG, Plaintiff, vs. WILNER MATHIEU d/b/a MATHIEU EXPRESS, et al.
NATIONAL INDEPENDENT TRUCKERS INSURANCE COMPANY, RRG, Plaintiff, vs. WILNER MATHIEU d/b/a MATHIEU EXPRESS, et al., Defendants.
COUNSEL: [*1] For National Independent Truckers Insurance Company, RRG, Plaintiff: Larry I. Gramovot, LEAD ATTORNEY, Gramovot & Takacs, PL, Tallahassee, FL.
Wilner Mathieu, doing business as, Mathieu Express, Defendant, Pro se, West Palm Beach, FL.
Wilbert Sanon, Defendant, Pro se, Delray Beach, FL.
For Arisner Agenor, Defendant: Trakina L. Graham, LEAD ATTORNEY, Graham Law Group, LLC, Orlando, FL.
For Alene Desir, Defendant: Michael Anthony Mills, LEAD ATTORNEY, Law Offices of Michael A. Mills LLC, Orlando, FL.
JUDGES: JAMES D. WHITTEMORE, United States District Judge.
BEFORE THE COURT is Plaintiff’s Motion for Default Judgment against Mathieu Express, LLC (Dkt. 60). Plaintiff insured a tractor-trailer that was involved in a motor vehicle accident with a vehicle operated by Arisner Agenor. At the time of the accident, Wilbert Sanon was operating the tractor-trailer. Arisner Agenor and his wife, Yvonie Agenor sued Sanon and Mathieu Express, LLC in Pinellas County Circuit Court. Plaintiff filed this declaratory judgment action seeking a judgment declaring the applicable limits of insurance available under a commercial auto insurance policy it issued. Mathieu Express, LLC has failed to answer [*2] or otherwise defend and a Clerk’s Default was entered against it.1 (Dkt. 28). The time for it to respond has passed and the Motion is deemed unopposed. Upon consideration, the Motion (Dkt. 60) is GRANTED.
1 Mathieu Express LLC was non-served for failing to continuously maintain a registered agent for acceptance of service of process as required by Fla. Stat. § 605.0113. (Dkt. 42-1 ¶ 3). Plaintiff, therefore, served the Florida Secretary of State pursuant to Fla. Stat. § 48.062(3). (Dkt. 42-1 ¶ 5; Dkt. 33).
Upon entry of a default, the defendant admits the plaintiff’s well-pleaded allegations of fact. Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).2 The default, however, does not in itself warrant a default judgment. Id. “[T]he well-pleaded allegations in the complaint [must] actually state a substantive cause of action” and there must be “a substantive, sufficient basis in the pleadings for the particular relief sought.” Tyco Fire & Sec., LLC v. Alcocer, 218 F. App’x 860, 863 (11th Cir. 2007). “[I]n construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000) (citation omitted).
2 In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
Plaintiff issued a commercial automobile insurance policy to Wilner Mathieu d/b/a Mathieu Express applicable for the period November 18, 2013 through November 18, 2014. (Dkt. 1 ¶ 11). By virtue of the default, Mathieu Express, LLC admits that at the time of the accident on December 27, 2013, Sanon was an “unreported driver” on the policy. It further admits that Fla. Stat. § 627.7415(3) applies and therefore the liability insurance limits under the policy are reduced to $300,000, [*3] the minimum required. (Id. ¶ 21-25). Therefore, as to Mathieu Express, LLC, the applicable limit of insurance available from Plaintiff for the accident on December 27, 2013 is $300,000.
Accordingly, Plaintiff’s Motion for Default Judgment Against Mathieu Express, LLC is GRANTED. With respect to Mathieu Express, LLC, the applicable limits of insurance available under the insurance policy are $300,000. The Clerk is directed to enter Default Final Judgment in favor of National Independent Truckers Insurance Company, RRG and against Mathieu Express, LLC.
DONE AND ORDERED this 31st day of July, 2017.


On February 21, 2018, Defendant, CulinArt, Inc., removed this case from the Court of Common Pleas of Allegheny County, where it was originally filed by Plaintiff Rikea Farrow, pro se, on January 30, 2018. Doc. No. 1. CulinArt then quickly moved to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state claims of discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq, arguing that Plaintiff failed to exhaust her administrative remedies, and also moved to dismiss Plaintiff's breach of contract claim, arguing that Plaintiff failed to identify the existence of a contract between Plaintiff and Defendant. Doc. No. 5 and Doc. No. 6. In response, Plaintiff submitted a Motion to Amend her Complaint. Doc. No. 7.
The Court has carefully reviewed Defendant's Motion to Dismiss and brief in support, doc. no. 5 and doc. no. 6, and Plaintiff's original Complaint, doc. no. 1-2, and her proposed Amended Complaint, doc. no. 7. The Court has also reviewed Defendant's Brief in Opposition to Plaintiff's Motion to Amend, doc. no. 9. For the following reasons, the Court will deny all pending motions as moot and remand this case to state court.
When reviewing Plaintiffs filings, the Court has liberally construed them to determine the claims set forth therein because pro se pleadings, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erikson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation omitted); Haines v. Kerner, 404 U.S. 519, 520 (1972). In addition, the court should “‘apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veterans Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)).
Rule 12(h)(3) commands “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). The party asserting jurisdiction, in this case the Defendant, bears the burden of showing at all stages of the litigation that the case is properly before the federal court. Samuel-Bassett v. KIA Motors America, Inc., 357 F.3d 392, 396 (3d Cir. 2004). The obligation of a federal court to examine its jurisdiction over an action is appropriate in cases that have been removed from state court, even if the plaintiff has not challenged the removal. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 389 (3d Cir. 2002).
• that CulinArt is a “joint employer” based upon the definition set forth in cases construing that term under Title VII.


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The following information gives you an overview of the processing of your personal data when you visit our website www.cellgarden.com or use our online shop. We will inform you about what information we collect from you and how we use it. In addition, we will inform you about your rights under applicable data protection law and let you know who to contact if you have any questions.
If you have any questions regarding the processing of your data, you can contact our data protection officer Alexander Lier at any time. You can reach him by e-mail at datenschutz@cellgarden.com or our postal address with the addition "Data Protection Officer".
2. What data do we process from you?
other similar data and information used in the event of an attack on our information technology systems.
In addition to the aforementioned data, cookies are stored on your computer when you use our website. Cookies are small text files that are stored on your hard drive assigned to the browser you are using, and that provide certain information to the body that sets the cookie (here, through us). Cookies cannot run programs or transmit viruses to your computer. They serve to make the Internet offer more user-friendly and effective overall. Specific information about cookies is listed in section 5.
Data that you provide to us when you apply for an advertised job or initiative apply to us (personal data, data for training, data on previous professional-union career, CV, portrait photo, certificates).
We only process the data insofar as they actually occur with us, for example when placing an order in the online shop.
Data that we obtain from postal service providers to verify, correct or complete the billing and delivery address you specify.
3. Is there an obligation to provide the data?
The provision of your data is not required by law.
However, some of the above data is required to set up a customer account and to conclude and execute purchase contracts for goods and services of our online shop. Without the notification of the data necessary for the execution of the contract, we are not in a position to enter into a purchase agreement with you regarding the goods and services of our online shop.
The communication of other data is voluntary but may be required for the use of certain services. This concerns e.g. Data for participation in a competition. We will inform you when you enter data if it is necessary to provide the service or feature you require. These data are marked as mandatory fields. In the case of required data, non-provisioning means that the service or function concerned cannot be provided. For optional data, non-provision may result in our failure to provide our services in the same way and to the same extent as usual.
4. For what purposes do we process your data and on what legal basis is this done?
In the event of a cyberattack, law enforcement agencies provide the information needed to prosecute.
This anonymously collected data and information is therefore statistically evaluated by us on the one hand and furthermore with the aim of increasing data protection and data security in our companies in order to ultimately ensure an optimal level of protection for the personal data we process. The anonymous data of the server log files are stored separately from all personal data provided by an affected person. The legal basis for the described data processing is Article 6 (1) (f) of the General Data Protection Regulation (balance of interests, based on the interest of CELL Garden).
If you register with us as a customer, we set up a password-protected customer account for you. In your customer account you can manage your data and view past, open or in-order orders. Your e-mail address is used together with your password for identification in the customer account. The legal basis for the data processing described is Article 6 (1) (b) of the General Data Protection Regulation (pre-contractual measures and performance of the contract).
We process your data for the processing of orders in our online shop. This includes the delivery of goods, the processing of payments, the granting of discounts if necessary, the use of vouchers and the processing of returns and claims for defects.
We will inform you about the receipt of an order and the respective status by e-mail. We use your mobile phone number to contact you in case of problems with the contract handling or delivery by phone. We pass on your data to third parties, as far as this is necessary for the payment transaction or delivery. We may transfer data on outstanding claims to a debt collection agency for collection purposes. The legal basis for the data processing described is Article 6 (1) (b) of the General Data Protection Regulation (performance of the contract).
If you choose a payment method that involves a financial risk of default (invoice, direct debit), we may collect credit information based on mathematical-statistical procedures from SCHUFA Holding AG, Kormoranweg 5, 65201, in order to safeguard our legitimate interests Wiesbaden. For this purpose, we provide the data required for a credit check (for private customers: name, address, date of birth, for business customers: company, address, commercial register number) to SCHUFA Holding AG and use the information received on the statistical probability of default for a balanced decision on the Establishment, implementation or termination of the contractual relationship. The credit information can contain probability values (score values), which are calculated on the basis of scientifically recognized mathematical-statistical methods and whose calculation includes, among other things, address data. Your concerns will be considered in accordance with the statutory provisions. The legal basis for the data processing described is Article 6 (1) (f) of the General Data Protection Regulation (balance of interests, based on our interest in preventing payment defaults for potentially unsafe payment methods).
In order to prevent cases of fraud, we can check the correctness and deliverability of address data via postal service providers and restrict the available payment methods or reject the conclusion of a purchase contract in case of atypical order transactions (eg shipping to a previously unused delivery address, simultaneous ordering of a large number of goods / services) , The legal basis for the data processing described is Article 6 (1) (f) of the General Data Protection Regulation (balance of interests, based on our interest in preventing fraud).
We process your data (name, e-mail address, transaction data) to ensure food safety for defective products and to prevent possible personal injury or property damage. The legal basis for the data processing described is Article 6 (1) (c) (d) Basic Data Protection Regulation (fulfillment of a legal obligation to which we are subject or the protection of vital interests of the data subject or another natural person).
We use your e-mail address for direct advertising for your own similar offers in connection with an order in our online shop. These product recommendations are available regardless of whether you have subscribed to our newsletter. In this way, we want to provide you with information about goods and services from our offer, which you might be interested in because of your previous orders placed in our online shop. If you do not wish to receive these product recommendations, you can object to this at any time without any costs other than the transmission costs according to the basic tariffs. Informal communication to the contact details referred to in point 1 is sufficient. Alternatively, you can also use the unsubscribe link included in each e-mail. The legal basis for the described data processing are Article 6 (1) (f) of the General Data Protection Regulation (balance of interests, based on our interest in submitting advertising to existing customers) and Section 7 (3) of the law against unfair competition (processing of your e-mail Address for direct mail).
On our website you have the opportunity to subscribe to our newsletter. The newsletter informs about current offers from us. If you tell us your name, we will use it to speak to you personally. In addition, you provide us with additional data, which we use to tailor the content of the newsletter to you and your interests. After submitting the registration form you will receive a confirmation e-mail. Registration will not take effect until you click on the link in the confirmation email (double-opt-in procedure). You can unsubscribe from the newsletter at any time. Simply use the unsubscribe link at the end of each e-mail. The legal basis for the described data processing is Article 6 (1) (a) of the General Data Protection Regulation (Consent).
We use your billing address for direct advertising for your own offers in connection with an order placed in our online shop. Regardless of whether you have subscribed to our newsletter, you will receive this letter. In this way, we want to provide you with information about goods and services from our offer, which you may be interested in because of your previous order placed in our online shop. If you do not want to receive this letter, you can contradict this at any time. Informal communication to the contact details referred to in point 1 is sufficient. The legal basis for the data processing described above is Article 6 (1) (f) of the General Data Protection Regulation (balance of interests, based on our interest in advertising to existing customers).
We want to send you advertising that is geared to your individual interests. In order to do so, we analyze your data and try to select products, services and actions that suit your specific advertising needs. To do this, we evaluate your data in order to identify typical patterns of buying behavior, to define clearly defined target groups and to tailor the advertising approach to the respective target group. Calculated buying probabilities help us to better understand your needs. In addition, your information enables you to view services that are available in your market, match the frequency of advertising to your usage habits, and personally address you by name. The legal basis for the data processing described is Article 6 (1) (a), (f) of the General Data Protection Regulation (consent or balance of interests, based on our own interest in submitting advertising that is based on the individual interests of the recipient).
We process your data to invite you to satisfaction surveys, e.g. in the aftermath of an order. The legal basis for the described data processing is Art. 6 (1) (a), (f) Basic Data Protection Regulation (consent or balance of interests, based on our interest in determining customer satisfaction with our online shop).
We evaluate the results of our marketing activities to measure the effectiveness and relevance of our campaigns. We determine the success of our advertising efforts to continuously improve our marketing activities in your favor and to plan new measures. The legal basis for the described data processing is Art. 6 (1) (f) Basic Data Protection Regulation (balance of interests, based on our interest in measuring the success of advertising measures).
From time to time we would like to offer you the opportunity to participate in competitions on our website. For the realization of a competition, we process your data (name, e-mail address, address and possibly further data necessary for the competition). We process your data for the examination of the eligibility, determination and notification of the winner, sending of the prize and possibly publication of the winner. The legal basis for the described data processing is Article 6 (1) (b) of the General Data Protection Regulation (implementation of the competition).
5. Which analysis tools do we use and how do they work?
We use "cookies". Cookies are text files that are stored and stored on a computer system via an Internet browser.
By using cookies, we can provide you with more user-friendly services that would not be possible without the cookie setting.
You can prevent the setting of cookies through our website at any time by means of an appropriate setting of the Internet browser used and thus permanently contradict the setting of cookies. Furthermore, already set cookies can be deleted at any time via an internet browser or other software programs. This is possible in all common internet browsers. If you deactivate the setting of cookies in the used Internet browser, not all functions of our website may be fully usable.
Persistent cookies are automatically deleted after a specified period, which may differ depending on the cookie. You can delete the cookies in the security settings of your browser at any time, as described above.
We process your data automatically with the aim of evaluating certain personal aspects (profiling). We analyze your data using mathematical-statistical methods to tailor advertising to your individual interests.
5.3. Analysis via "Google Analytics"
We have integrated the component "Google Analytics" (with anonymization function) on our website. Google Analytics is a web analytics service. Web analysis is the collection, collection and analysis of data about the behavior of visitors to websites. Among other things, a web analysis service collects data on which website an affected person has come to a website (so-called Refereer), which subpages of the website were accessed or how often and for which duration a subpage was viewed. A web analysis is mainly used for the optimization of a website and for the cost-benefit analysis of Internet advertising.
The operator of the Google Analytics component is Google Inc., 1600 Amphithe-atre Pkwy, Mountain View, CA 94043-1351, USA.
We use the addition "_gat._anonymizeIp" for web analysis via Google Analytics. By means of this addendum, the IP address of your Internet connection will be shortened and anonymised by Google if the access to our website is from a Member State of the European Union or from another state party to the Agreement on the European Economic Area.
The purpose of the Google Analytics component is to analyze visitor flows on our website. Among other things, Google uses the data and information obtained to evaluate the use of our website, to compile for us online reports showing the activities on our website, and to provide other services related to the use of our website to provide.
Google Analytics uses a cookie on the information technology system of the person affected. What cookies are, has already been explained in section 5 above. By using this cookie Google is enabled to analyze the usage of our website. Each time one of the pages of this website is accessed by the controller and a Google Analytics component has been integrated, the internet browser on the information technology system of the person concerned will automatically be Analytics component causes data to be submitted to Google for the purposes of online analysis. As part of this technical process, Google will be aware of personal data, such as the IP address of the person concerned, which, among other things, serve Google to track the origin of the visitors and clicks and subsequently enable commission settlements.
The cookie stores personally identifiable information, such as access time, the location from which access was made, and the frequency of site visits by the data subject. Each time you visit our website, your personal information, including the IP address of the Internet connection used by the person concerned, is transferred to Google in the United States of America. This personal information is stored by Google in the United States of America. Google may transfer such personal data collected through the technical process to third parties.
The legal basis for the data processing described in Section 5 is Article 6 (1) (f) Basic Data Protection Regulation (balance of interests based on our interest in measuring and analyzing the use of our website).
6. How are comments on our blog treated?
We offer users the opportunity to leave individual comments on individual blog posts on a blog located on our website. A blog is a web-based, usually public-accessible portal in which one or more people who are called bloggers or web bloggers can post articles or write down thoughts in so-called blog posts. The blog posts can usually be commented on by third parties.
7. Who has access to your data and for what reason?
Service providers employed by us must meet special confidentiality requirements. You will only have access to your data to the extent and for the period required to perform the tasks.
If an offense is suspected, we can pass your data on to law enforcement agencies (police, prosecutors).
We use as mail delivery service "MailChimp"
8. Is there a data transfer to social media providers?
The plug-in provider stores the data collected about you as usage profiles and uses them for purposes of advertising, market research and / or customized design of his website. Such an evaluation is carried out in particular (also for non-logged-in users) for the purpose of displaying needs-based advertising and to inform other users of the social network about your activities on our website. You are entitled to a right of objection to the formation of these user profiles, whereby you must contact the respective plug-in provider to exercise this. The plug-ins allow us to interact with social networks and other users so that we can improve our offer and make it more interesting for you as a user. The legal basis for the use of the plug-ins is Art. 6 para. 1 sentence 1 lit. f General Data Protection Regulation.
The data transfer takes place regardless of whether you have an account with the plug-in provider and are logged in there. If you are logged in to the plug-in provider, your data collected from us will be assigned directly to your existing account with the plug-in provider. If you press the activated button and for example, if you link the page, the plug-in provider also stores this information in your user account and shares it with your contacts publicly. We recommend that you log out regularly after using a social network, but especially before activating the button, as this will prevent you from being assigned to your profile with the plug-in provider.
Facebook Inc., 1601 S California Ave, Palo Alto, California 94304, USA; www.facebook.com/policy.php; further information about the data collection: www.facebook.com/help/186325668085084, www.facebook.com/about/privacy/your-info-on-other sowie www.facebook.com/about/privacy/your-info. Facebook has submitted to the EU-US Privacy Shield, https://www.privacyshield.gov/EU-US-Framework.
Google Inc., 1600 Amphitheater Parkway, Mountainview, California 94043, USA; www.google.com/policies/privacy/partners/ hat sich dem EU-US-Privacy-Shield unterworfen, www.privacyshield.gov/EU-US-Framework.
Twitter, Inc., 1355 Market St, Suite 900, San Francisco, California 94103, USA; twitter.com/privacy. Twitter has submitted to the EU-US Privacy Shield, www.privacyshield.gov/EU-US-Framework.
Instagram LLC., 1601 Willow Road, Menlo Park, CA 94025, USA („Instagram“); help.instagram.com/155833707900388/. Instagram has submitted to the EU-US Privacy Shield, www.privacyshield.gov/EU-US-Framework.
9. Are data processed outside the European Union?
For the processing of your data, we also use service providers located in third countries outside the European Union.
10. How long is the data stored?
Data on an application for an advertised position six months after the application process has been completed.
You can request information about your personal data processed by us. For details, please refer to Art. 15 General Data Protection Regulation.
If your information is not (any more) accurate, you may ask for your data to be corrected. If your data is incomplete, you can ask for a completion. For details, please refer to Art. 16 Basic Data Protection Regulation.
You have the right to request the deletion of your data. Please note that a claim for cancellation depends on the existence of a legitimate reason. In addition, there must be no regulations that oblige us to keep your data. For details please refer to Art. 17 General Data Protection Regulation.
You have the right to request the restriction of the processing of your data. Please note that a claim to restriction of processing depends on the existence of a legitimate reason. For details, please refer to Art. 18 Basic Data Protection Regulation.
You have the right to object to the processing of your data for reasons that arise from your particular situation. In the case of a legitimate objection, we will no longer process your data. With regard to the details, we refer to Art. 21 General Data Protection Regulation.
You have the right to object at any time to the processing of your data for direct marketing purposes. This also applies to the profiling associated with direct mail. You can send your objection to us in a form-free manner, preferably to the above-mentioned contact data quoting the keyword "Objection to the processing of my personal data for advertising purposes". For details, please refer to Art. 21 General Data Protection Regulation.
You may file a complaint with a data protection supervisory authority if you disagree with the processing of your data. For details, please refer to Art. 77 General Data Protection Regulation.
You have the right to receive personally identifiable information you have provided to us in an electronic format. For details, please refer to Art. 20 of the General Data Protection Regulation.
You have the right to withdraw your consent to the processing of your data which you have given us at any time. This also applies to the revocation of consent statements that you have submitted to us before the General Data Protection Regulation, ie before 25.05.2018. The easiest way to withdraw any consent you have given is to contact the above contact details by e-mail. The withdraw of consent does not affect the legality of the processing of your data carried out until the withdraw. For details please refer to Art. 7 General Data Protection Regulation.

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