Legal Update - April - 2004

Corky Kessler Joins FVLD

We are delighted to advise you that Hal "Corky" Kessler has become a Member of FVLD. Corky, who was previously a member of a mid-size Chicago law firm, will add his extensive corporate, entertainment law, and worldwide entertainment industry experience to FVLD’s transactional and media law practice. We are thrilled that Corky has joined FVLD. He solves legal problems with business acumen and creativity. Our practices compliment each other well.

Among other accomplishments in the entertainment industry, Corky developed, packaged and executive produced numerous feature film and televisions projects, including The Sum of Us starring Russell Crowe, which won the Australian Academy Award for Best Film. Corky also is a regular panel member and speaker at film festivals in the U.S. and Canada and has written for Screen Magazine and other entertainment periodicals.

A New Estate Planning Wrinkle: HIPAA Authorization & Release

If you have been to a physician or dentist recently, you probably have been asked to sign a statement regarding your rights under the federal Health Insurance Portability and Accountability Act ("HIPAA"). HIPAA imposes many restrictions upon the freedom of a physician or other health care provider to disclose medical information and onerous consequences for disclosing medical information in violation of HIPAA.

Surprisingly, HIPAA may have an impact on your estate planning. How so? Those persons designated as your agents under a Power of Attorney for Property or a Power of Attorney for Health Care may not be able to act. Under the strict HIPAA regulations, a physician may be unable or unwilling to release information to the designated agent about your physical or mental state without a HIPAA waiver, yet the designated agent will not be authorized to act until a physician's determination of incapacity has been shown. Likewise, if you have a Living Trust, your designated successor trustee may not be able to act for a similar reason.

To avoid this problem, it would be advisable to authorize release to your agents and, if applicable, successor trustees, of all information governed by HIPAA. The current statutory form of Power of Attorney for Health Care does not include such an authorization, nor do most forms of Power of Attorney for Property or Living Trusts. Moreover, we believe that it is preferable to have a separate authorization and release that can be presented to a physician or other health care provider.

We have developed a HIPAA Authorization and Release that would authorize the release of medical information to designated agents and successor trustees, including information for purposes of determining your disability. Moreover, the Authorization and Release provides that anyone relying on it may rely on a photocopy, facsimile, or electronic version of it, and the original need not be produced.

There is some chance that HIPAA regulations, as finally promulgated, will obviate the need for Authorization and Release. In the meantime, we suggest that you seriously consider executing an Authorization and Release. If you would be interested in our customizing one for you, please call Jon Vegosen at 312.701.6860 or consult with your regular FVLD contact.

FVLD Scores 3 Media Law Victories in March

Funkhouser Vegosen Liebman & Dunn Ltd. successfully represented media defendants in defamation decisions rendered in March of this year in three different courts.

On March 30, the Illinois Appellate Court upheld the dismissal of a defamation lawsuit filed by an Emerald Casino investor regarding a story headlined "Mob links hurt Rosemont casino bid" in the March 7, 2001, edition of the Chicago Sun-Times. The story referred to casino investor Joseph Salamone as a "reputed organized crime figure," prompting Salamone to file defamation and false light invasion of privacy action. FVLD filed a motion to dismiss the complaint and Cook County Circuit Judge Kathy M. Flanagan granted the motion. On appeal, Justice Robert Cahill authored a published opinion affirming the dismissal, finding that the Sun-Times characterized Salamone "not as a mobster, but as a person who is believed to be, possibly erroneously, an organized crime figure." The court agreed that "There is nothing in the remainder of the article that would support an opposite conclusion."

On March 24, FVLD obtained the dismissal of another defamation complaint, also against the Sun-Times, in the United States District Court for the Northern District of Illinois. Karla Knafel, the alleged former mistress of NBA star Michael Jordan, claimed that a Richard Roeper column defamed Knafel by describing her as a prostitute. Judge Amy St. Eve authored a memorandum opinion finding that the column was subject to an innocent construction as a matter of law.

On March 26, FVLD secured dismissal of a defamation suit against the Naperville Sun that was pending in the Circuit Court of DuPage County. FVLD successfully argued that the plaintiff’s criminal record rendered him "libel proof."

Funkhouser Vegosen Liebman & Dunn Ltd. publishes updates on legal issues and summaries of legal topics for its clients and friends solely for general informational purposes. They do not constitute legal advice, nor are they intended as a substitute for obtaining legal or other professional advice based upon specific factual circumstances or issues. We welcome comments or questions.

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