All Columns

The Informational Interview That Changed My Life

By Dena Lefkowitz |

When clients reach a career ­crossroad, I often suggest informational interviewing to scope out a prospective new role, firm, ­industry or career path. That suggestion is almost always met with resistance. The most ­frequently voiced objection is not wanting to bother a busy person. When that is overcome, a trove of information, insight and inspiration can be uncovered.

The Statue of Liberty

EB-5 Regional Center Program Facing Changes

By Jessica A. DeNisi |

On Sept. 8, nearly a month ahead of the Sept. 30 deadline, the EB-5 Regional Center Program was ­extended to Dec. 8, as part of H.R.601. While the extension of the EB-5 Regional Center Program is a welcome development, yet another short-term extension of the EB-5 Regional Center Program leaves the EB-5 immigration community to wonder what changes may be brought by future legislation and how the requirements for participation in the EB-5 Regional Center Program will be updated and, presumably, augmented.

FERC Slaps State Overreach on Federal Jurisdictional Pipelines

By Michael L. Krancer, Frederick M. Lowther and Margaret Anne Hill |

FERC issued a key and welcome ­decision on Sept. 15, when it held that the state of New York, through its passive-aggressive handling of a ­federal Clean Water Act (CWA) Section 401 ­certification, had waived its authority to issue the certification.

Howard J. Bashman

Brief-Writing, Issue Selection Advice From the Superior Court

By Howard J. Bashman |

This summer, while your attention may have been understandably ­focused elsewhere, the Superior Court of Pennsylvania issued two noteworthy decisions offering brief-writing and issue selection advice. Because helping lawyers improve the quality of their appellate advocacy is a regular focus of this column, and because the appellate advocacy aspects of these two recent rulings did not garner widespread notice, a closer look at the relevant aspects of these two recent decisions is warranted.

Larry E. Coben

Mysterious Sports Disease: Causation, Prevention and Responsibility

By larry E. Coben |

Actor Will Smith, as Dr. Bennett Omalu, had the theatrical liberty to postulate that repetitive helmeted/head impacts on the football field caused Mike Webster, Justin Strzelczky, Andre Waters and Dave Duerson to take their lives; he charged that they took their lives after they became emotionally unstable because they suffered from chronic ­traumatic encephalopathy (CTE). That theatrical assertion was first chronicled and scientifically postulated by Omalu in a published paper in 2010, when he introduced the notion that suicidality was a clinical feature of CTE.

Superfund Sites: Sweeping Up the Past, Present and Future

By Garrett D. Trego |

Of the 1,343 current Superfund National Priority List (NPL) sites in the nation, over 15 percent are in New Jersey or Pennsylvania. One hundred and fourteen of the sites are in New Jersey, and 95 are in Pennsylvania, the first and third highest totals of any state. The NPL is intended to target and identify the most severe or complex contaminated sites in the country.

Profit Sharing Ruled an Unenforceable Anti-Assignment Restriction

By Francis J. Lawall 
and John Henry Schanne II |

A fundamental benefit of Chapter 11 is a debtor's ability to assume and assign executory contracts and unexpired leases over the objection of a nondebtor counterparty, even when the contract contains otherwise valid ­anti-assignment provisions. Moreover, as demonstrated in a recent decision by the U.S. District Court for the District of Delaware, this statutory tool can be used despite its negative ­impact upon the underlying economics of the original contract, as in Antone v. Haggen Holdings (In re Haggen Holdings), 2017 U.S. Dist. LEXIS 139272 (D. Del. Aug. 30).

signing-contract

RULONA: Pennsylvania Updates Its Notary Public Law

By Marc L. Aronson |

The Revised Uniform Law on Notarial Acts (RULONA) takes effect in Pennsylvania on Oct. 26. Approved by the Uniform Law Commission in 2010, RULONA modernizes and clarifies the law governing notaries public, their ­responsibilities and duties, and addresses the notarization of all records, whether on paper or electronic.

The Philadelphia Association of Paralegals Calendar of Events

• On Sept. 29, the 2017 PAP Education Conference at PBI is scheduled to be held. Registration forms and information is available at www.philaparalegals.com.

Capitol Report

Following is a listing of executive and legislative action for the week of Sept. 11. The state House of Representatives was continuing in session at press time; the Pennsylvania Senate stood in recess and was set to return to session on Monday.

Matthew B. Weisberg

'Goodyear' Puts Limit on Sanctions Remedy for Misconduct

By Matthew B. Weisberg |

Every jurisdiction's court (federal and state) has the authority to sanction a party and its counsel for litigation misconduct. These sanctions tend to divide based on severity—from most severe to least: sua sponte (a court's inherent authority); vexatious multiplication of proceedings; frivolity; and discovery noncompliance. Each of these degrees of sanctions carry with it attendant sanctions damages. Likewise, each requires a greater level of intent (i.e., from the intentional "defilement" of the court to neglect).

gavel

Allocating Liability Among Defendants in Crashworthiness and Other Cases

By Eugene Hamill 
and Gerard Cedrone |

Larry Coben's recent article in the Law Weekly, published on Aug. 15, asks the question, "Should Vehicle Manufacturers Be Entitled to Apportionment of Liability?" We contend that Pennsylvania's tort law should be applied to vehicle manufacturers in just the same way it is applied to any other litigant.

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Amended Whistleblower Law Should Be on Every Attorney's Radar

By Cliff Rieders |

Most lawyers in Pennsylvania, regardless of whether they regularly practice employment law, are undoubtedly aware that under Pennsylvania law, "as a general rule, employees are at-will, absent a contract, and may be terminated at any time, for any reason or for no reason," as in Stumpp v. Stroudsburg Municipal Authority, 540 Pa. 391, 396 (1995). The practitioner should also be aware that among the few exceptions to the "at-will" employment doctrine are the statutory protections for employees afforded by Pennsylvania's Whistleblower Law, 43 P.S. Section 1421.

Legal Ads Must Be Honest and Comply With the Rules

By Samuel C. Stretton |

I noted billboards and other advertisements of a firm that is primarily based in Florida advertising in Pennsylvania. The firm features a picture of apparently the senior partner who states words to the effect, "I am your lawyer." They are advertising for personal injury cases. The ads give the impression that that lawyer will handle the cases. I am only aware of one office and one newly admitted lawyer in Pennsylvania for the firm. Is that ethical?

Evolving Cyberinsurance Coverage for Phishing Attacks

By Brian Collins |

Federal courts continue to shape the landscape for cyberfraud coverage. The recent spate of cases focus on the scope of coverage for "phishing" or "spoofing" attacks. Recent cases focus on these attacks for two reasons: they are slightly different than a classic system intrusion or hack, and these forms of invasion have grown to become the major threat that many companies face (see Matthews, Lee, "Homeland Security Chief Cites Phishing As Top Hacking Threat," Forbes, Nov. 29, 2016). It is not surprising to see an increase in court decisions dealing with the topic given this reality.

Left to right: Andrew Kassner and Joseph Argentina , Drinker Biddle & Reath

Court Adopts 'Probable' Standard for WARN Act Noticing

By Andrew C. Kassner 
and Joseph N. Argentina Jr. |

Bankruptcy cases are often filed after a distressed company has ­determined the only way for the business to survive as a going concern is to pursue a sale. The sale process is conducted prior to the filing, and the case is filed, together with a request that the court approve the sale of the company pursuant to the terms of the negotiated sale agreement unless a higher offer is received. Often there is no alternative, and the question is whether the sale to the bidder will be approved and closed. If it does not close and the company is forced to liquidate, other federal laws may come into play.

Christopher M. Brubaker

Do You Suffer From Cyberfatigue? Stay Vigilant

By Christopher M. Brubaker |

Have you become immune to the latest breach headline unless you might be personally impacted (or unless it offered the opportunity to watch "Game of Thrones" episodes early)? Tired of wondering if today is the day we get breached, hacked or held for ransom? Sick of knowing that there is no perfect ­solution to cybersecurity? Dumbfounded by the amount of resources that are being thrown at the issue with no guarantees that you won't suffer a catastrophic ­cyberevent? Fed up with trying to navigate the ­ever-expanding regulatory web impacting the use of data and cybersecurity? Confused by how much and what type of cyberinsurance to purchase? Welcome to cyberfatigue.

Sid Steinberg

No Sexual Harassment, But Retaliation Claim Survives

By Sid Steinberg |

Just as the adage is that "the coverup is worse than the crime," we know that in employment law, "the retaliation claim is more dangerous than the ­underlying ­discrimination." The latest example of this is in the recent decision of Austin v. Bloomin' Brands, Inc., 2:16-CV-06509-TR (Aug. 30).

A Child's Voice Will Be Heard in Parental Termination Hearing

By Kathleen Creamer 
and John Pollock |

As attorneys who represented amici in the recent Pennsylvania Supreme Court case In re L.B.M., we write to respond to the June 26, public interest ­column describing the Pennsylvania Supreme Court's decision in that case, ("Providing a Voice for the Child in Court"). With respect for our colleagues at the Support Center for Child Advocates, we believe that this column understates both the breadth and the clarity of the court's holding in that case.

Alan Nochumson of Nochumson P.C.

Cautionary Tale for Property Bidders at Sheriff's Sales

By Alan Nochumson |

Every month, in every county of the commonwealth, a sheriff's sale ­typically takes place where third parties can bid on real estate in that county which is subject to tax or mortgage ­foreclosure proceedings.

GC Mid-Atlantic Events

Performance-Based Compensation and Corporate Responsibility

By Katayun I. Jaffari and Kaleena Laputka |

While shareholders across different business sectors necessarily have diverse concerns, executive compensation is a topic that remains at the top of nearly all shareholders' lists of corporate governance priorities. Largely beginning with the implementation of "say-on-pay" votes under The Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act), companies have increased communications with shareholders and have begun more recently to proactively respond to shareholder concerns.

Familiar Faces, Higher Pay Among Top Pa.'s General Counsel

By Zack Needles |

After taking a collective pay cut in 2015, the highest paid general counsel among Pennsylvania's public companies saw their compensation back on the upswing in 2016.

Angela Giampolo of Giampolo Law Group in Philadelphia

Why LGBTQ-Owned Businesses Further Equality

By Angela D. Giampolo |

In recent years, when the terms "LGBTQ" and "small business" are discussed in the media, it's usually in response to a small but vocal minority demanding religious freedom to refuse service to members of the LGBTQ community, and the legal battles that follow. However, perhaps there are more important discussions revolving around business and the LGBTQ community—the discussion of the power LGBTQ-owned businesses have in further equality.

Shkedy/Smolen

Understanding How 529 Plans Fit Into the Estate Plan

By Rebecca Rosenberger Smolen and Amy Neifeld Shkedy |

As summer has been winding down, so many of our clients' children and grandchildren have headed off to college in the last few weeks and have begun (or resumed) tackling hefty tuition bills. Many families have set aside funds, in one form or another, in advance for these college costs.

Daniel J. Siegel

Case Puts Spotlight on Social Media and Attorney Conduct

By Daniel J. Siegel |

A day doesn't seem to go by without another report of a lawyer whose conduct on social media has resulted in either sanctions or disciplinary proceedings. Whether it is advising a client to delete content on Facebook, or responding to a negative Yelp review by revealing confidential information, or having a staff member "friend" someone without disclosing their relationship, lawyers continue to get themselves into trouble. And no matter how many times lawyers such as I who write, lecture and warn other lawyers to be careful about their use of social media, they still ignore the advice and end up in hot water.

Carefully Evaluate Whether Issues Involving Your Case Are 'Substantially Related'

By Samuel C. Stretton |

In a conflict of interest where I represented a person previously, what does "substantially related" mean in terms of disqualification?

Demonstrators outside the U.S. Supreme Court on the day of arguments in the immigration case United States v. Texas. April 18, 2016. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

Foreign Work Force Helps Sustain Our Local Businesses

By Robert Seiger |

With Labor Day now behind us, likely many of us have enjoyed some summer fun with our families. Whether a lazy summer day on one of our Jersey Shore beaches, or a day riding the coasters at one of our Pennsylvania amusement parks, summer affords us this time to shut it down and soak up the sun. But, while you're walking the boards looking for ice cream, have you ever stopped to notice who are those folks working the rides, serving the ice cream or manning the gaming booths? Same goes for the ticket takers at the theme parks. And who hasn't used their mobile phone or laptop to order those staples for the shore house that you just don't want to leave the beach to go shop for. Take a closer look and also ponder who might have designed that great app you are using to order those school supplies while the kids are splashing in the pool. Now that you think about it, walking the boardwalks at night can often be analogous to walking down Fifth Avenue in Manhattan during the holidays, English is among the languages you will hear.

Leonard Deutchman

Turn to 'Google' for Guidance on Data Stored Outside the US

By Leonard Deutchman |

The application of federal search warrants issued under the Stored Communications Act has become increasingly problematic as more entities store some or all of their data outside of the United States, even if those entities can readily access that data within the United States.

Preview of the Supreme Court's October Term 2017

By Stephen A. Miller |

The Supreme Court will spring back into action next month. No more limping forward while awaiting a full bench. Instead, the court will open its new term with the full complement of nine justices and dive into a blockbuster slate of oral arguments: travel ban, political gerrymandering, fundamental questions of criminal law, etc.

Tony Volpe, IP litigator and co-founder of Volpe and Koenig.

Sovereign Immunity as Applied by PTAB in Inter Partes Reviews

By Anthony S. Volpe and Kevin P. Proud |

With the increasing presence of various state arms, like universities and hospitals, involved in research and the licensing of technology, particularly patents, cases concerned with how to apply sovereign immunity to those state related entities are receiving more attention. This increased attention is very evident in the Inter Partes Review proceedings filed in the U.S. Patent and Trademark Office (USPTO) as an alternative to patent litigation in Article III courts.

Gay Parks Rainville, left, and Robert L. Hickok, right, of Pepper Hamilton.

High Court Restores Protection Intended by Securities Statute of Repose

By Robert L. Hickok 
and Gay Parks Rainville |

In a landmark 5-4 ruling issued earlier this summer, the U.S. Supreme Court held that the filing of a putative class action does not toll the three-year ­statute of repose for opt-out claims brought under Section 11 of the Securities Act of 1933 (Securities Act), in California Public Employees' Retirement System v. ANZ Securities, 137 S. Ct. 2042 (2017). By refusing to apply the equitable tolling rule of American Pipe & Construction Co. v. Utah, 414 U. S. 538 (1974), to the Securities Act's statute of repose (Section 13 of the act), the court restored the statute's purpose to protect defendants "from an interminable threat of liability."

Vasilios J. Kalogredis

CMS Proposes Changes to Some Cardiac and Orthopaedic Payment Models

By Vasilios J. Kalogredis |

On Aug. 15, the Centers for Medicare and Medicaid Services (CMS) proposed changes to the comprehensive care for joint replacement model (CJR), cancellation of a mandatory episode payment models (EPMs) and cardiac ­rehabilitation (CR) incentive payment model. These were previously authorized tests to change reimbursements as to certain cardiac and joint replacement services.