Ohio Demands Obamacare Exemption in 6th Circuit

     CINCINNATI (CN) — Ohio attempted to convince a Sixth Circuit panel on Tuesday that nonfederal government entities are exempt from the federal health care law’s reinsurance requirements.     The state — along with several public universities and other government entities — appealed a district court decision that refused to require the U.S. government to refund contributions made since 2014.     The “Transitional Reinsurance Program” was designed as a way to stabilize prices in the insurance market following the passage of the Patient Protection and Affordable Care Act, and concludes at the end of 2016.     Employers who take part in group health plans are required to make contributions in an effort to offset the premiums of high-risk enrollees.     Ohio and other plaintiffs sued the U.S. government, the Department of Health and Human Services, and its secretary, Sylvia Matthews Burwell.     The lawsuit claimed state and local government agencies were exempt from the reinsurance program, and sought reimbursement for previous contributions.     U.S. District Judge Algenon Marbley dismissed the suit in January, ruling that “‘non-federal governmental plans’ … constitute a subset of ‘group health plans’ … with respect to the Transitional Reinsurance Program.”     Attorney Fred Nelson argued on behalf of the plaintiffs, and said that the definition of “group health plan” used by the Act is taken from ERISA, and does not include nonfederal government health plans.     Nelson called the omission “deliberate,” and asserted a lack of “legislative history that the government intended state entities to make these payments.”     U.S. Circuit Judge Karen Nelson Moore asked the attorney about the consequences of overturning the lower court’s decision; specifically if there would be “massive implications” for the rest of the ACA.     “Not at all,” Nelson replied.     Alisa Klein, attorney for the United States, countered this claim during her argument.     “There would be enormous implications” if the three-judge panel reversed the lower court ruling, she said.     She argued the federal government took care to prevent state and local governments from opting out of the ‘big ticket items’ in the Act, including the reinsurance program.”     Klein also pointed out that while the Act does cross-reference the definition of a group health plan from ERISA, it relies primarily on the definition found in the Public Health Services Act.     According to Klein, this definition specifically mentions “non-federal government health plan,” which is taken to mean state and local plans.     Judge Moore asked for clarification on the definitions several times, and at one point called the cross-references “confusing.”     “Plain language does not always mean easy to discern,” Klein answered. “It does not need to be ‘blinking lights clear’ from one provision.”     Chief Judge R. Guy Cole Jr. and Senior Judge Martha Craig Daughtrey rounded out the panel.     No timetable has been set for the court’s decision.

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Cincinnati Air Not Clean Enough, 6th Cir. Finds

     CINCINNATI (CN) – The Sixth Circuit dumped an EPA ruling on air-quality standards after the Sierra Club proved Ohio and Indiana failed to use “reasonably available control measures” to comply with the Clean Air Act.     The Cincinnati-Hamilton metropolitan area – which includes portions of Kentucky, Ohio and Indiana – had been granted “attainment” status in 2011 following an EPA study of its air quality.     The Sierra Club filed a petition with the Sixth Circuit, however, and claimed that “improvements in the area’s air quality were not ‘permanent and enforcement reductions in emissions’” and that “the existing nonattainment state implementation plans (SIPs) had never implemented ‘reasonably available control measures’ (RACM/RACT) rules.”     The EPA claimed the Sierra Club lacked standing to bring its petition to the court, but Circuit Judge Julia Smith Gibbons disagreed.     “Taking as true its claim that Ohio and Indiana did not have legally sufficient RACM/RACT measures for fine particulate matter at the time of redesignation, we find it highly likely that imposition of RACM/RACT would have some marginal effect on area emissions,” Gibbons wrote for the panel. “Or at least as likely as an environmental litigant could ever hope to establish.”     She continued: “We therefore find it reasonable to infer actual and imminent aesthetic and physical injuries to an identified member of the club from redesignation of the Cincinnati area.”     Gibbons then turned to the Sierra Club’s arguments regarding the “attainment” designation granted by the EPA.     The club had argued that an area cannot be granted attainment status as a result of reduced pollutant inflow from outside sources, and must instead adopt the RACM/RACT measures to curb pollution from within its borders.     The EPA countered by arguing that the “statutory text is silent on the location of the reductions,” and the panel agreed.     “Here, EPA’s interpretation seems eminently reasonable,” Gibbons wrote for the panel. “In its direct final rule, the agency indicated that emissions from other ‘upwind’ states significantly influence particulate matter concentrations in the Cincinnati area. It might well be the case that regional source reductions would be necessary to attainment under any scenario, but we need not examine that question in full. The existence of a regional problem is enough to conclude that EPA’s regional focus on emissions reductions is ‘sufficiently rational’ and within the statutory ambit to warrant deference to its technical expertise.”     The Sierra Club had also argued that the states’ reliance on cap-and-trade programs to reduce emissions were not “permanent” solutions, but the panel disagreed.     Under the region-wide interpretation used by the EPA, “the ‘cap’ in each of the cap-and-trade programs would ensure that the relevant ‘reductions’ are not foreseeably reversed, at least at the level of the entire cap-and-trade region,” Gibbons wrote.     The panel did, however, agree with the Sierra Club’s argument that SIPs must include RACM and RACT provisions, as well as its citations from the 2001 Sixth Circuit case Wall v. EPA.     In Wall, the Sixth Circuit ruled that “the statutory language regarding the implementation of RACT rules is not ambiguous,” and that “by this language, it is clear that Congress intended for SIPs submitted in redesignation requests to include provisions to require the implementation of RACT measures.”     The EPA cited the 2004 Seventh Circuit case Sierra Club v. EPA, in which “the phrase ‘applicable implementation plan’ could conceivably refer to something other than the pre-attainment SIP,” but the Sixth Circuit disagreed.     “A state seeking redesignation ‘shall provide for the implementation’ of RACM/RACT, even if those measures are not strictly necessary to demonstrate attainment with [pollution requirements,]” Gibbons wrote for the panel. “If the state has not done so, EPA cannot ‘fully approve’ the area’s SIP, and redesignation to attainment status is improper.”     Ultimately, the panel vacated the Ohio and Indiana redesignations, but allowed the Kentucky redesignation to stand.     The other members of the panel included Circuit Judge Raymond Kethledge and U.S. District Court Judge Robert M. Dow Jr. of the Northern District of Illinois.

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NAACP Says ‘Cincinnati Branch’ Is a Fraud

     CINCINNATI (CN) – A group calling itself the “Cincinnati Branch” of the National Association for the Advancement of Colored People is a fraud and was never sanctioned by the NAACP, according to a complaint in federal court.     The NAACP’s national office sued the NAACP, Cincinnati Branch along with its incorporators – Beverly Morton, Ishton Morton and Lettie Reid – on Tuesday.     The lawsuit says the group and its directors – who are former members of the NAACP – “are involved in a scheme to deceive the public … [and] have held meetings in the name of the NAACP” despite not being a sanctioned organization.     The NAACP claims that following its formation in October 2014, the Cincinnati Branch filed a lawsuit against the NAACP and its National Director of Unit Administration, at which time the NAACP “learned of Cincinnati Incorporated’s illegal behavior.”     That lawsuit sought an injunction delaying an election and accused several members of “deliberately and consciously … sow[ing] confusion and uncertainty” among members prior to the election, according to the complaint.     Since the formation of the “Cincinnati Branch,” the plaintiff says “Ishton Morton, Beverly Morton and Lettie Reid have had their memberships suspended from the NAACP.”     Despite repeated demands, the defendants have “refused to turn over the financial records, bank records, and bank account documents … belonging to the NAACP and its authorized, unincorporated Cincinnati Branch,” the complaint states.     The NAACP also claims Ishton Morton and Reid “illegally added [their names] to at least four of the bank accounts of the authorized, unincorporated Cincinnati Branch of the NAACP.”     The NAACP says “since their respective suspensions, defendants Lettie Reid, Ishton Morton and Beverly Morton have spent over $30,000 in assets belonging to the authorized, unincorporated Cincinnati Branch of the NAACP … [and] continue to conduct meetings, authorize and utilize funds of the NAACP for impermissible and illegal purposes, operate as if they are a sanctioned branch of the NAACP, and illegally execute contracts in the name of the NAACP.”     The NAACP seeks at least $300,000 in damages and an injunction shutting down the unauthorized Cincinnati Branch for trademark infringement, false advertising, fraud, civil conspiracy and conversion.     It is represented by Janaya Trotter Bratton of Trotter Law in Cincinnati.

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‘Dirtiest Hotel’ Has no Case Against TripAdvisor

     CINCINNATI (CN) – TripAdvisor should not face defamation claims for putting a Tennessee resort atop its list of America’s “Dirtiest Hotels” in 2011, the 6th Circuit ruled.     Kenneth Seaton, the owner and operator of the Grand Resort Hotel and Convention Center in Pigeon Forge, Tenn., sued the Expedia subsidiary nearly two years ago for $10 million.     He claimed that TripAdvisor compiled its list of Dirtiest Hotels “to cause the public to cease and refrain from doing business with [Grand Resort] and to cause great injury and irreparable damage to and to destroy [Grand Resort’s] business and reputation by false and misleading means.”     In moving to dismiss, TripAdvisor provided a screenshot of the feature in question. It showed Grand Resort at the No. 1 spot, alongside “a photograph of a ripped bedspread; a quotation that ‘There was dirt at least ½” thick in the bathtub which was filled with lots of dark hair.’; and a thumbs-down image beside the statement ‘87% of reviewers do not recommend this hotel,’” according to the ruling.     A federal judge in Knoxville dismissed the action, and the Cincinnati-based federal appeals court affirmed Wednesday.     “Seaton did not state a plausible claim for defamation because TripAdvisor’s placement of Grand Resort on the ‘2011 Dirtiest Hotels’ list is not capable of being defamatory,” Judge Karen Nelson Moore wrote for a three-person panel. “Placement on the ‘2011 Dirtiest Hotels’ list constitutes protected opinion because the list employs loose, hyperbolic language and its general tenor undermines any assertion by Seaton that the list communicates anything more than the opinions of TripAdvisor’s users.”     Judge Moore added: “TripAdvisor’s ‘2011 Dirtiest Hotels’ list cannot reasonably be interpreted as stating, as an assertion of fact, that Grand Resort is the dirtiest hotel in America. We reach this conclusion for two reasons. First, TripAdvisor’s use of ‘dirtiest’ amounts to rhetorical hyperbole. Second, the general tenor of the ‘2011 Dirtiest Hotels’ list undermines any impression that TripAdvisor was seriously maintaining that Grand Resort is, in fact, the dirtiest hotel in America. For these reasons, TripAdvisor’s placement of Grand Resort on the ‘2011 Dirtiest Hotels’ list constitutes nonactionable opinion.”     Seaton also failed to question the methodology TripAdvisor used to compose its list, with the appellate panel citing its 2007 resolution of Compuware Corp. v. Moody’s Investors Services Inc.     “Even if Seaton is correct that TripAdvisor employed a ‘flawed methodology’ in creating the list, his claim for defamation still fails because TripAdvisor’s method of compiling its user reviews and surveys, as alleged by Seaton, is ‘inherently subjective [in] nature’ and therefore protected under Compuware,” Moore wrote.

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‘King of the Road’ Rights Won’t Cost Sony After All

     CINCINNATI (CN) – The estate of “King of the Road” singer Roger Miller cannot keep a $900,000 verdict against Sony for copyright infringement, the 6th Circuit ruled.     Sony Publishing still owns the copyrights to Miller’s country-western music because it applied for the copyrights before Miller’s death.     Sony was named assignee of Roger Miller copyrights in the 1960s and applied to renew those copyrights in early 1992. Miller’s greatest hit, “King of the Road,” is one of about two dozen 1964 songs in dispute.     The renewal term of Miller’s songs began in January 1993, but Miller died months earlier in October 1992. His widow, Mary Miller, claimed that copyright law dictates they she was sole owner of the copyrights following the musician’s death.     Roger Miller Music Inc. sued Sony in December 2004 over the song rights, and a federal judge in Nashville eventually ordered the recording studio to pay Miller’s company more than $903,300 in infringement damages. The court said Sony did not own the renewal copyrights to the 1964 songs because Miller had died prior to the vesting of those rights and a list of statutory successors did not include assignees.     On appeal, however, a three-judge panel concluded otherwise.     “Miller’s assignment of the renewal copyright would indisputably have been made effective if he had still been living at the commencement of the renewal term on January 1, 1993,” Judge Karen Nelson Moore wrote for the court. “Equally indisputable is that the assignment would have been rendered ineffective if Miller had died before 1992. … RMMI contends that Miller must have been living at the start of the renewal term to effectuate his assignment to Sony, but Sony contends that Miller needed to survive only until that time at which the application was filed. Sony is correct that the Copyright Act supports the effectiveness of assignments in such circumstances.”     “The renewal copyright vests in any party entitled to it ‘at the time the application is made,’” Moore added. “The author (and therefore any of his assignees) thus secures an interest in the renewal copyrights so long as he is still living at the time of application for renewal at the Copyright Office. … The House Judiciary Committee Report for the 1992 Copyright Act confirms this reading, explaining that ‘[r]egistration during the final year would assure the author or other claimant that his or her right to the renewal term vested on registration, even if he or she died later that year.’”     Moore rejected claims that Miller’s widow could hold simultaneous interest in the copyrights with Sony until the commencement of the renewal term under precedent set in the case seven years earlier when it was captioned Broadcast Music v. RMMI.     “The statement in Broadcast Music that ‘renewal copyright interests can be held simultaneously by numerous parties’ was made in the context of a dispute between an author’s widow and child, both of whom occupy the same tier in the statutory successor hierarchy,” Moore wrote.

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‘Price List … for Sex Acts’ at Arkansas College

     LITTLE ROCK, Ark. (CN) – An exchange student claims an administrator at Philander Smith College sexually assaulted her after asking “if she wanted to make money stripping and dancing at a party,” and claims that the assault investigation turned up “a price list … for sex acts.”     N.L., a minor from the Bahamas, claims defendant George Gray recruited her to attend Philander Smith College, a 4-year college in Little Rock. Gray, 42, was head of recruitment at the school, according to the complaint in Pulaski County Court.     “On or about December 3, 2010, N.L. learned that Gray wanted to talk to her about something and she went to Gray’s office to meet with him. Once in his office, Gray inappropriately questioned N.L. about sexual matters and asked her if she wanted to make money stripping and dancing at a party. N.L. refused and told Gray that she wanted to leave. N.L. was unable to leave because the door was locked,” the complaint states.     “At the same time and place, Gray aggressively, and with the intent to scare N.L., forced her to engage in inappropriate sexual conduct. When N.L. tried to leave, Gray grabbed her, turned her around, and forcefully bent her over his desk, pressing himself against her buttocks. When N.L. told Gray to stop, Gray grabbed her head and threatened N.L. Gray also told N.L. to perform oral sex on him. She did not.”     N.L. says the Little Rock Police Department “was informed of Gray’s sexual assault of N.L. The LRPD investigated the incident and designated it as a ‘sexual assault.’ During the investigation, the LRPD was informed by Keri Smith, an Academic Success English Coach at PSC who was acting as N.L.’s representative at the request of N.L.’s parents who reside in the Bahamas … of a price list generated by fraternity members for sexual acts that they will pay for at their parties. Gray was a member of this fraternity,” the complaint states.     “Upon information and belief, PSC had prior knowledge (actual and/or constructive) of the inappropriate sexual misconduct and actions of Gray and the fraternity and that Gray was using his position as the Director of Recruiting for PSC to solicit female students to perform sexual acts.” (Parentheses in complaint.)     Gray was arrested and “has been charged with sexual assault in the second degree and producing, directing or promoting a sexual performance by a child, both charges are Class B felonies,” the complaint states.     N.L. seeks punitive damages for false imprisonment, assault, battery, outrage and negligence.     Named as defendants are George Gray, Philander Smith College and three John Doe insurance companies.     N.L. is represented by H.C. “Jay” Martin, with Wallace, Martin, Duke and Russell.     Philander Smith College describes itself on its website as “a private, residential, co-educational, four-year undergraduate liberal arts college affiliated with the United Methodist church and a founding member of the United Negro College Fund.”

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