One of the things I love about being a law firm marketing consultant is I get to watch firms innovate on ways to retain clients and get new ones. In the last few months, several "new" marketing activities have come to my attention that I thought were absolutely terrific.
Employers throughout Pennsylvania and throughout the country routinely ask job applicants how much they are making, how much they made in their last jobs or request wage and salary information as part of job history inquiries on written and online job applications for available job positions.
The Pennsylvania Supreme Court previously rejected a broad equitable tolling doctrine under oil and gas leases where a lessor only has filed a declaratory judgment action seeking to invalidate the oil and gas lease.
Pennsylvania legal malpractice law is continually evolving, but some parts of the law are well fixed and case law continually serves to affirm it. Some recent cases from our state appellate courts reinforce some of the most basic black letter elements of legal malpractice law.
• On Jan. 25, Philadelphia VIP will host a New Volunteer Orientation to welcome new volunteer attorneys from 8:30 to 9:30 a.m., at Philadelphia VIP's offices, 1500 Walnut St., Suite 400, Philadelphia. The program will provide an overview of Philadelphia VIP and the opportunities and resources available to volunteers. To register, visit www.phillyvip.org.
The statute of limitations on the attempt to enforce unpaid credit cards varies from state to state, but one thing remains consistent—eventually a creditor cannot seek to remedy an unpaid credit card bill in state court. Statutes of limitations are often troublesome for debt collectors. A debt collector is defined as "any person who ... regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due to another," 15 U.S.C. Section 1692a (6). One such debt collector facing the implications of statutes of limitations is Midland Funding, whose business it is to buy debts. "Specifically, Midland purchases accounts with overdue unpaid balances and tries to collect those accounts," in Johnson v. Midland Funding, 823 F. 3d 1334, 1336 (11th Cir. 2016).
For the past two decades, one of the main tools used to address domestic violence committed by immigrant perpetrators has been arrest and removal from the United States. The goals of federal legislation on this issue are to protect victims of domestic violence and to hold perpetrators of violence accountable. While these laws are well-intentioned and often effective, deportation may not always be the best remedy for two reasons. First, it may actually decrease, rather than increase, the victim's safety; and second, it may be contrary to the victim's wishes.
Providing a dazzling array of federal and state tax exemptions and credits, a hugely untapped market serving all other states' card holders, and relief from profitability's greatest obstacle, IRC Section 280E, Puerto Rico is swiftly becoming the nation's most attractive jurisdiction to grow and dispense marijuana.
That federal policy favors arbitration agreements is well-recognized. Indeed, the Federal Arbitration Act (FAA) specifically provides that, "a written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy arising thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract" Accordingly, all doubts must be resolved in favor of arbitration.
At a Pennsylvania Bar Institute (PBI) continuing legal education (CLE) program in Philadelphia for young lawyers, various attorneys shared valuable tips in the program, "Start Strong: Skills of the Successful Lawyer."
• On Jan. 24, a Philadelphia Association of Paralegals 1Q Luncheon is set to be held at 12:30 p.m. at Hotel Sofitel Philadelphia. Board installation. Additional information is available at https://goo.gl/idLgC5.
As hard as it may be to believe, we are beginning a brand new year. After the stress of closing out 2016, the excitement of the holidays, and the contentious national election, it's time to make resolutions that will help you succeed in reaching both your professional and personal goals. You ended 2016 with a bang, now get 2017 off on the right foot with a fresh start. Thinking of constructive resolutions is easy, but keeping them? Not very easy at all.
It is a hornbook principle of legal practice that you will live and die by your book of business if you work at a law firm. So great is the emphasis on developing such a book that associates (particularly junior associates) often do not realize that their first client is just a couple doors down the hall. Indeed, before you are—hopefully—promoted to partner (and let's be honest, if you are an associate who plans to remain in the private sector, that is generally the goal), the partners you work for as an associate have to trust in your abilities as a lawyer. No associate is ever going to make partner if they have a bad reputation or the partnership lacks confidence in them. So how do you demonstrate that you are an all-star associate ready to work hard and—hopefully—one day become a partner? The answer may surprise you because it is so simple: treat every partner you work for as a client.
In November 2014, President Barack Obama directed the Department of Homeland Security to undertake a set of administrative initiatives on immigration in the absence of congressional action on statutory immigration reform. The headline initiative was to try and protect the undocumented parents of U.S. citizen children from deportation, but several other directives were aimed at making the legal immigration system more responsive to highly skilled immigrants and entrepreneurs. In a flurry of activity as this administration comes to a close, a rule to allow "parole" of entrepreneurs into the United States was finalized, and the Department of Homeland Security issued a precedent decision setting a new standard for determining when highly skilled immigrants should be granted green cards "in the national interest."
That the new Pennsylvania attorney general, Josh Shapiro, does not place all the blame for the dysfunctional office he inherited on former Attorney General Kathleen Kane. She was in over her head, which caused her to make a lot of mistakes; however, many of the problems that occurred during her administration were the result of her predecessors and many of the staff members she inherited. This includes the group of prosecutors who made a continuing practice of sending pornographic photos and racial/ethnic jokes to judges they appeared before.
By Andrew C. Kassner and Joseph N. Argentina Jr.
One of the interesting and often misunderstood roles in a bankruptcy case is the appointment and participation of official committees, most often the official committee of unsecured creditors. The creditors' committee is appointed by the Office of the U.S. Trustee at the outset of the bankruptcy case. Participation on the committee is a voluntary and unpaid position. The committee is usually of a size between three and seven members picked from the largest 20 unsecured creditors. The committee elects a member to act as chair. The role of the committee is to act as a representative of the entire unsecured creditor body by, including but not limited to investigating matters relevant to the debtor's financial condition, operations and formulation of a plan of reorganization, and participating in the formation of a plan. Committee members by definition hold their own individual claims against the debtor, but as committee members they are supposed to act in the interest of all creditors.
Recently the Philadelphia Bar Foundation removed the name Andrew Hamilton from its signature annual benefit ball. Andrew Hamilton was an early Philadelphia lawyer who was famous for, among other things, successfully defending John Peter Zenger, a New York publisher, in a seditious libel criminal trial in 1735. He is not the guy who appears on the $10 bill; that's another Hamilton. He is also not the first chancellor of the Philadelphia Bar Association.
Enforcement efforts by the U.S. Environmental Protection Agency in the past year have been dominated by the agency's response to high-visibility cases along with its continuing focus on its identified enforcement priorities. In announcing its 2016 annual enforcement and compliance results for the fiscal year spanning from Oct. 1, 2015 to Sept. 30, 2016, the EPA highlighted certain high-impact cases as well as significant investments in pollution controls resulting from its enforcement efforts aimed at site remediation and curbing air emissions, water and stormwater pollution and chemical risks. In sum, the agency secured over $13.7 billion in investments by private entities to control pollution. In the Superfund arena, responsible parties contributed over $1 billion across the nation to remediate affected sites, resulting in a $55 million return to the Superfund trust for future projects. The agency racked up $6 billion between federal administrative, and civil judicial penalties, including $775,000 in court-ordered environmental projects and $207 million in criminal fines and restitution, and a total of 93 years of prison time for sentenced defendants in criminal environmental actions. Notably, the two owners of chemical company Freedom Industries were each sentenced to 30 days in prison and a $20,000 fine for the 2014 Elk River spill that contaminated drinking water supplies serving 300,000 people in West Virginia. Finally, the agency acquired a total of $31.6 million for communities to engage in environmentally friendly projects.
Settlement of litigation cases prior to trial often requires resolving competing claims for insurance coverage and indemnification between some or all of the parties. Fundamentally, determining who has to pay to settle a suit can be as complex, if not more so, than the underlying dispute. Determining how the issues of risk shifting are going to be handled when setting up mediation is therefore critical to ensuring that such ADR efforts are productive endeavors. Although there is no singular method or formula, there are three general approaches: Resolving prior to mediation; resolving at the time of mediation; and resolving the underlying case contingent on a post-mediation determination of insurance/indemnity obligations. This article discusses some common considerations to make mediation of cases with such concerns most effective.
By Francine Friedman Griesing and Emily Griesing
Very few neutrals, arbitrators or mediators, however astute, can truly appreciate what a party is feeling in the midst of mediation or court mandated settlement conference. Similarly, even the most committed and well-meaning counsel may not be able to provide the level of emotional support or guidance a client needs in this setting as they have never walked in the client's shoes. Until you have been a party to a dispute yourself, not merely an advocate or a neutral, you may imagine, but have not experienced, the feelings of fear, anger, disappointment, frustration and confusion that parties bring to the alternate dispute resolution process. Having experienced all of the roles at play— arbitrator, mediator, defense counsel, plaintiff's counsel and finally and most critically, as a party myself, one can understand and appreciate more directly the stress parties face in this process. If you have been a party, you are more acutely aware of how trying the experience can be and thus understand the value of considering that perspective. Bearing this in mind, neutrals and counsel can take some straightforward steps to make the experience more tolerable for all parties, increasing the chances of reaching a successful and time-efficient resolution.
In the past U.S. election and in recent European elections, immigration has proven a key issue of contention. Putting aside politics, we must deal with the reality that this wave of immigration has diversified America and created a population of persons who have limited English proficiency (LEP). In the Philadelphia metropolitan area alone, in 2015, the U.S. Census reports that 146 languages are spoken in the Philadelphia metropolitan area.
Mediating a medical malpractice case brings with it many challenges that are not present when mediating other types of cases. From the outset you must determine whether or not your case can be mediated at all. This presents a challenge unique to medical malpractice cases. This is because if any of your defendants are physicians, there will likely be a consent clause in the doctor's insurance policy. Therefore, the doctor will need to execute a consent to settle with their insurance company before any real settlement discussions can occur. This is often a difficult hurdle to overcome before undertaking mediation and one of the main reasons medical malpractice cases go to trial at a higher rate than any other types of matters. Doctors must report any settlement to the National Practitioner Data Bank, which is something doctors often wish to avoid. Should the doctor not agree to consent, mediation with that defendant cannot occur, so it must be evaluated whether it is worthwhile to mediate with any of the remaining parties and potentially carve that doctor out via joint tortfeasor release, or if you are in an all-or-nothing scenario. Should the parties desire to mediate and the defendant doctors agree to consent to settle the litigation, the next step is to pick an appropriate mediator.
Today's divisive politics portends the proliferation of environmental disputes. It is reasonable to expect a growing number of clashes among businesses, government, and grassroots environmental and neighborhood groups. Despite this harbinger of conflict, mediation can play a critical role in resolving at least a portion of these impending environmental disputes.
Almost no one disputes that litigation is expensive and time consuming. Clients recognize that litigation expends bottom line dollars and consumes executive time; lawyers recognize that litigation, regardless of how efficiently it is conducted or how successfully it ends, is often viewed as being conducted for the benefit of the lawyers; and, judges always want to know why the matter is consuming court time and effort when it should be settled. Notwithstanding this seeming census on the importance of alternate dispute resolution, almost all efforts to resolve a dispute come into focus after the commencement of litigation. In many instances, the alternate resolution efforts come well into the litigation and after the completion of fact discovery. This typically results in increased party hostility and a desire by both parties to recover the sunk cost as part of any settlement.
Attorneys representing consumers have for many years sought to escape mandatory arbitration clauses in contracts, arguing that the arbitration system inherently and unfairly favors corporate defendants. In the wake of the 2010 Dodd-Frank Act as well as recent scandals, including revelations of fraud at Wells Fargo Bank, policymakers and public interest advocates have joined the fight against arbitration. While the recent attacks have focused on arbitration clauses in consumer contracts, arbitration clauses in other types of contracts—e.g., employment contracts and insurance policies—could also be challenged. This article will provide a brief summary of prior challenges to arbitration, review recent developments adding fuel to the fire and examine what the future of arbitration may look like.
This two-part article will discuss the admissibility of a product's compliance with industry standards at trial in strict products liability actions. The first part provides an overview of the admissibility of industry standards in Pennsylvania before Tincher was decided and then discusses the court's holding in Tincher, focusing on its overruling of earlier, infamous Pennsylvania cases Azzarello and Lewis. The second part of this article will provide an analysis of cases addressing the admissibility of industry standards after Tincher and argue that defendants in strict products liability cases should now be permitted to introduce evidence of their products' compliance with industry standards.
A recent article in the New York Review of Books examined an art exhibition at the former Reading Prison in Berkshire, England. The prison, formerly known as the Reading Gaol, was for about two years the residence of Irish playwright Oscar Wilde.
At the commencement of each new year we like to look ahead, pretend that we have a crystal ball and predict what this new year will bring in the world of employment law. This year is different in that we face a major change in our government. On Friday, President-elect Donald Trump is set to assume office and, for the first time in over a decade, we have a Republican president and a Republican majority in the Senate and the House of Representatives.
A brief survey of news and social media confirms a rather obvious proposition: The citizens of our nation harbor deep biases. Some of those are innocuous and help us navigate the world. Others are more pernicious, and our legal system exists in no small part to neutralize the impact of those impermissible biases. In Peña Rodriguez v. Colorado, the U.S. Supreme Court is grappling with the issue of racial bias in the decision-making of a criminal trial jury.
Intra-company romantic relationships are a minefield for employers. Nowhere is this better exemplified than in the recent case of Gatter v. Ika-Works, No. 16-953, 2016 U.S. Dist. LEXIS 174816 (E.D. Pa. Dec. 16, 2016). The case seems to merge employment law with a reality television show gone bad—involving the romantic relationship between a local sales representative and the son of the Ika-Works' president, himself a part-owner of the company, with walks on a beach and a Mediterranean boating trip. The sexual harassment complaint seems to have been almost inevitable.
The Supreme Court of Pennsylvania's Appellate Court Procedural Rules Committee has been keeping busy recently, proposing two significant changes to the state rules of appellate procedure that are currently at the notice-and-comment stage of the rulemaking process. The rule changes address two aspects of Pennsylvania appellate practice that this monthly appellate column has regularly discussed in the past.
As municipalities across the state attempt to utilize various methods of raising much-needed revenue, it is noteworthy that the Commonwealth Court has reaffirmed the vitality of our statutory scheme that regulates the process of real estate tax sales.
This article reviews the television show "Shark Tank" on a weekly basis, with a focus on the intellectual property (IP) embodied by the products or business ideas each contestant pitches on that show. As always, keep in mind the following types of IP protection:
Well, congratulations! If for nothing else, congratulations on surviving one of the most tumultuous, confusing, disappointing and momentous years ... ever. We witnessed one of the most intense election cycles in U.S. history. Hillary Clinton was the first female candidate for president go up against Donald J. Trump. On the one hand, Clinton supported Obama's transgender student bathroom allowance, praised the Supreme Court's decision in Obergefell v. Hodges and committed herself to protecting LGB and transgender rights. Had she won, this article and our psyches wouldn't be so glum. But alas, in the end she was short of the electoral victory. While we are glad to leave 2016 behind, let us not forget the progress that we made as a community and realize how important it is to remain diligent in 2017. This year will be when everyone, if they didn't already know, learns that the LGBT community is strong, resilient and united—not only those inside the community, but our allies as well.
Trade secrets make up the most important assets of many U.S. companies, small and large. The importance of trade secrets cannot be understated, as they comprise 70 percent of the value of U.S. public companies' information portfolios, totaling over $5 trillion (U.S. Chamber of Commerce, The Case for Enhanced Protection of Trade Secrets in the Trans-Pacific Partnership Agreement), and making them an inviting target for theft from both domestic and international competitors. In fact, it has been estimated that the annual value of trade secret losses in the United States is $300 billion, which has led to an estimated loss of 2.1 million American jobs per year (S. Rep. No. 114-220, 2016). Trade secret theft is conducted from both within and from outside of a target, with 50-80% of all global intellectual property theft being traceable to China (The IP Commission, The Report of the Commission on the Theft of American Intellectual Property).
As discussed in this space on various occasions, the Commonwealth Court's decision in Protz v. Workers' Compensation Appeal Board (Derry Area School District), 124 A.3d 406 (Pa. Commw. 2015), which has since been taken up by the Pennsylvania Supreme Court, addressed the constitutionality of Section 306(a.2) of the Workers' Compensation Act, which calls for reliance on "the most recent edition" of The American Medial Association Guides to the Evaluation of Permanent Impairments (the AMA guides) in performing Impairment Rating Evaluation (IREs). The court found that the legislature's deference to "the most recent version" of the AMA guides was an unconstitutional delegation of legislative authority to the AMA with no vehicle for legislative review.
The closing argument featured a slide-show presentation. The closing slide was a depiction of the Taiwanese manufacturer's chairman giving a speech at a wedding banquet. The wedding was that of the daughter of the U.S. distributor's owner. The speech compared the 30-year relationship of the manufacturer with the distributor with the bride and groom, and how those present would look back on the wedding day with fondness.
Privacy has always been a somewhat ephemeral concept. We do not protect privacy as such in the Constitution of the United States. However, the courts see privacy as a penumbra of several constitutional protections. What the courts have done is to create a metaphor between privacy and a solar eclipse. During a total solar eclipse, there is the appearance of a ring of fire seen around the moon. That ring is something that scientists call the penumbra. Therefore, while privacy is not explicitly mentioned in the Constitution, we can see it as a ring around the Bill of Rights.
For individuals and corporate entities alike, lawsuits arise from interactions with other parties. Some of these interactions involve prominent parties. Thus, the ensuing lawsuits will attract the attention of the media. Other times, these interactions arise under interesting circumstances or involve novel applications of the law. Here too, the ensuing lawsuits will attract the attention of the media. When defending these lawsuits in a court of law, attorneys would not dream of missing an opportunity to use any and all tools available to them in the course of their defense.
Last week, I discussed the case, United States v. Ganias, 824 F.3d 199 (2nd Cir. 2016), cert. denied, No. 16-263 (S.Ct. Dec. 5), in which the U.S. Court of Appeals for the Second Circuit, en banc, reversed a panel opinion that had vacated the defendant's criminal conviction for two counts of tax evasion on the ground that the search of the defendant's computers violated the Fourth Amendment. The search had been conducted upon forensic images (often referred to as "mirror" images) of hard drives of the defendant's computers, which drives had been imaged in 2003 as part of execution of a search warrant for evidence of one crime, then re-searched in 2006 as part of execution of a second search warrant for evidence of the tax evasion charges. In this part of the series, I discuss the meaning and importance of forensic imaging, and the Second Circuit's take on all of it.
I am representing an attorney who is suspended. He has been reinstated in the Pennsylvania courts and is now seeking reinstatement in federal courts. Is there any issues I should be aware of on a federal reinstatement hearing?
Many small business entities find that they occasionally have a new product or process for which they wish to seek patent protection. Some of those small businesses may have had some prior experience with the patent process. Unfortunately, many of the prior patent laws changed with the advent of the America Invents Act (AIA). The AIA made fundamental changes in the consequences associated with a business engaging in market activities prior to the filing of a patent application and many commercial entities that occasionally pursue patent protection have not made the necessary adjustments in their internal procedures.
It goes without saying that noncustodial parents are liable for child support, but the law is still developing as to whether other people in parental roles—namely stepparents—would be liable as well. The recent matter of A.S. v. I.S., 130 A.3d. 763 (Pa.2015), which the court believed was of first impression, has helped clarify the law on the subject.
President-elect Donald Trump announced in December his intention to nominate Andrew Puzder as the next secretary of the U.S. Department of Labor (DOL). A labor department led by Puzder is likely to bring significant shifts in the department's approach to the full range employment and labor issues, including the minimum wage, overtime, and overall enforcement and oversight of wage-and-hour laws, among other changes. Puzder's own ruminations on these issues in books, blog posts, speeches and media coverage offer insight for employers and employees on the philosophy he will bring with him to the Trump administration should he be confirmed by the Senate.
On Oct. 28, the Commonwealth Court ruled that the Pennsylvania Drug and Alcohol Abuse Control Act's confidentiality provisions do not apply to drug test results held by a nurse-employee's former employer.
For LGBT Pennsylvanians, 2016 brought progress in access to health care and in insurance coverage, in employment, and in education. Laws that expressly prohibit discrimination based on sexual orientation and gender identity remain elusive. But protections do exist. A growing body of court decisions recognize that discrimination based on sexual orientation or gender identity run afoul of existing laws barring sex discrimination. At the regulatory level, the current federal agencies have followed and even strengthened those courts' decisions. But the future of this trend is difficult to predict. The new presidential administration will bring new direction to the federal agencies that issued many of the regulations that LGBT people have begun to rely on to address discrimination they face in schools, when seeking health care, and in their ability to obtain insurance coverage for transition-related care. Forecasting is beyond the scope of this article, but those changes, as well as pending lawsuits challenging guidance issued by the Department of Education and the nondiscrimination regulations issued by Health and Human Services—and, of course, the threatened repeal of the Affordable Care Act—bring added uncertainty. In the end, however, the continued viability of these recent gains will rest with the courts, including the U.S. Supreme Court.
On Jan. 13, the 36th annual Sparer Symposium is set to be held at the University of Pennsylvania Law School. The Sparer Symposium commemorates the life and work of the late Edward V. Sparer, professor of law and social policy, and brings together legal academics and practitioners, delving deeply into important issues of our time. The title of this year's symposium is "A Country Divided: The 2016 Presidential Election and the Future of American Democracy." Panels will focus on voting rights, criminal justice reform, national security and campaign finance. Beth Donovan, senior Washington editor for NPR News, will deliver the keynote address. For additional information and to RSVP, visit goo.gl/eUk1iY.