All Columns

Craig R. Tractenberg of Fox Rothschild

What's in Store for Franchises in the Future?

By Craig R. Tractenberg |

Restaurant Brands International Inc. (RBI) owns indirectly three fast food iconic brands: Burger King Corp., Tim Hortons and now Popeyes Louisiana Kitchen Inc. RBI is indirectly owned by several investors, with the ­majority owned by 3G Restaurant Brands Holding. The growth has been fueled by both public company and private equity investment, and presents a snapshot of what may be in store for franchises in the future.

Jeffrey Campolongo

Court: Single Use of Racial Slur Enough to Create Hostile Work Environment

By Jeffrey Campolongo |

At issue in the case of Daniel v. T&M Protection Resources, Case No. 15-560 (2d Cir. April 25), was whether a single, offensive comment was sufficient to overcome summary judgment on the plaintiff's hostile work environment claim.

Court Holds That Deposits Would Be Hypothetical

By Rudolph J. Di Massa Jr. 
and Chad E. Odhner |

A bankruptcy trustee may recover for the bankruptcy estate so-called "preferential transfers"—certain payments made by the debtor within 90 days before the commencement of a bankruptcy case. To prevail, the trustee must show (among other things) that the creditor received a greater amount as a result of the transfer in question than such creditor would have received in a hypothetical liquidation under Chapter 7, had the challenged transfer not occurred.

Samuel Stretton

A Review of Sanctions Would Benefit the Judicial 
Disciplinary System

By Samuel C. Stretton |

The current judicial system created by the 1993 amendments to the Pennsylvania Constitution has been working fairly well. The Judicial Conduct Board was created under Article 5, Section 18 of the Pennsylvania Constitution as was the Court of Judicial Discipline. Rules of Procedure for both the Judicial Conduct Board and the Court of Judicial Discipline have been promulgated.

Class Arbitration of Oil and Gas Leases: An Update on 'Chesapeake Appalachia'

By Thomas Galligan |

On April 28, U.S. District Judge Matthew Brann of the Middle District of Pennsylvania issued the latest opinion in a series of high-profile decisions regarding class arbitrability of oil and gas leases. In Chesapeake Appalachia v. Scout Petroleum, 4:14-CV-0620, (M.D. Pa. April 28), Brann granted Chesapeake's motion for partial summary judgment, and entered a declaratory judgment that the leases at issue do not permit class arbitration, and instead require individual (or bilateral) arbitration. Brann's opinion rejected Scout's novel argument that as a matter of Pennsylvania contract law, class arbitration was impliedly authorized under the leases.

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Pa.'s Patient Safety Authority—Working to Prevent Medical Errors

By Cliff Rieders |

Pennsylvania's Patient Safety Authority (PSA) has completed its annual report to the Legislature, as required by law. When I helped to fashion the Pennsylvania Patient Safety Authority in 2001 as part of the MCARE Act, hardly could it have been imagined that the authority would grow to an entity of national, and even international, recognition.

The Grand Bargain Becomes the Grand Betrayal

By Samuel H. Pond and Maureen "Morty" Cassidy |

Over 100 years ago, the Pennsylvania Workers' Compensation Act was introduced to the commonwealth. It was called the "grand bargain." The grand bargain resulted in the loss of the constitutional right of an injured worker to sue their employer in exchange for the certainty and guarantee of workers' compensation benefits consisting of a weekly check and payment of medical treatment.

Insight Into the World of Class Actions and Mass Torts

By Joseph J. Fantini |

Class action and mass tort lawsuits are universally recognized as high-stakes litigations. Given the ­publicity following the slew of eye popping settlements and jury verdicts generated over the past two decades, such a response is understandable.

Visualize a Path to Action to Achieve Your Goals

By Dena Lefkowitz |

How do you decide what to pay attention to in a world where an onslaught of images and messages is constantly delivered by way of a myriad of devices along with an ongoing scan of ­in-person threats, opportunities and attractions our brains must prioritize every ­second? How do you maneuver around the minutiae of everyday life and keep your focus trained on aspirations and ­achievement? One answer is to train your brain to navigate past the noise and focus on what is important.

The Risk of Losing Patent Rights When an Invention Is 'On Sale'

By Lawrence E. Ashery |

One of the most frequent ­errors ­committed by inexperienced ­inventors is the untimely sale or public use of their invention. The sale of a ­product that includes a new invention—before a patent application is filed—destroys patent rights in many countries. Not so in the United States, where U.S. law provides a 12-month "grace period" to file for patent protection after a public use or sale

32 Marketing Activities Rainmakers Did This Month

By Stacy West Clark |

I am going to tell you exactly what several of my multimillion-dollar rainmaking clients did this past month to strengthen relationships with their current clients and key referral sources. I am also going to tell you what they did to "credential" themselves to further heighten their name recognition.

Robert H. Louis

Some Lawyers Don't Retire Because They Haven't Learned How

By Robert H. Louis |

I recently spoke at a Pennsylvania Bar Institute program titled "Retirement Planning for Attorneys," for which Bill Adler of Harrisburg and I were the course planners. We have done this program a number of times, and I have done similar programs for the Pennsylvania Bar Association and various estate planning councils with Lancaster lawyer Dick Greiner. I have spent a lot of time talking with, as well as to, lawyers thinking about retirement, and lawyers who have retired and lived to tell about it. Based on a large number of such discussions, there is a chasm between those approaching or already at retirement ages, but who are still working, and those who have retired.

pregnancy

Legal Communications In the Age of Today's Wealth of Fake News

By Tara Murtha |

A couple of years ago, I transitioned from full-time journalism to handling strategic communications for the Women's Law Project.

Elder care

Attorneys: Help Fight Elder Financial Abuse

By Dana N. Goldberg |

Multimillionaire Brooke Astor, Hollywood legend Mickey Rooney, World War II veterans, thousands of middle class suburban ­grandmothers and low-income seniors. What do all of these have in common? They have all been victims of devastating financial exploitation, robbed of their homes, financial legacies, life savings, whether in the millions or a modest nest egg.

Josh J.T. Byrne

The Dragonetti Act—Where Do We Stand Now?

By Josh J.T. Byrne |

Over the last few years a string of lower court opinions found Pennsylvania's wrongful use of civil proceedings act, known as the Dragonetti Act, represents an unconstitutional usurpation of the Supreme Court's sole authority to regulate attorney conduct. Chester County Court of Common Pleas Judge Edward Griffith issued the first decision, which held the Dragonetti Act is unconstitutional as applied to lawyers in Villani v. Seibert, No. 2012-09795 (Chester Ct. Com. Pl. 2015). Griffith noted the Dragonetti Act legislates conduct the Supreme Court regulates.

Abraham J. Gafni

Consequences of Breaching the Arbitration Agreement

By Abraham J. Gafni |

Parties often sign a Dispute Resolution Agreement (DRA) expecting that it will establish procedures before the dispute arises. But what if one party refuses to comply with the agreement, including, in particular, paying the necessary ­arbitration fees? Will the other party, having been ­frustrated in its attempt to arbitrate, be relieved of its obligations under the agreement?

Samuel Stretton

Lawyers Should be Careful When Telling Witnesses Not to Cooperate

By Samuel C. Stretton |

I have a criminal case coming up and the district attorney and detectives want to talk to some of the witnesses I listed in the alibi notice. Can I tell those witnesses not to speak to the district attorney?

Municipal Inspections: You're Going to Need a Warrant for That

By Zachary A. Sivertsen |

Municipalities throughout the state have enacted property maintenance, zoning and building codes to ensure construction is performed safely and in a technically sound manner, development occurs in an orderly fashion and properties are maintained and kept free of safety hazards.

High-Asset Divorce Case: Getting the Decree Is Only the Beginning

By John A. Zurzola |

The management and conclusion of many noncomplex divorce matters with associated litigation share much in common. The parties and attorneys work to sort out custody and support issues, value limited assets and debts and then negotiate to settle or litigate the economic issues in equitable distribution. In what many practitioners term, the "house and pension case," the number of steps required to conclude a matter for clients might be able to be counted on one hand.

Edward T. Kang

Defend Trade Secrets Act of 2016—One-Year Later, Now What?

By Edward T. Kang |

Last June, I published an article in The Legal explaining the then newly enacted Defend Trade Secrets Act of 2016 (DTSA). The article focused on the impact the DTSA would have on trade secret litigation. This article discusses a couple of notable developments involving the DTSA in the year since its enactment.

Service Learning a Two-Way Street in Paralegal Training

By Elizabeth Canapary |

For the past six years, I have taught in the paralegal studies program at Community College of Philadelphia. Every year, I get to know over a hundred students who are taking their first steps into the legal field. We teach associate's ­degree students, post-baccalaureate, graduate ­students and even midlevel career ­changers in our classrooms.

The Statue of Liberty

Immigration Agencies Ramp Up Compliance Visits, Look for Fraud

By William A. Stock |

On Monday, news stories from New York City reported that agents of an immigration agency had appeared at a public school in Queens. Initial reports assumed that the agents were from Immigration and Customs Enforcement (ICE), the Department of Homeland Security (DHS) component that apprehends and removes immigrants without status from the United States.

Amanda DiChello, left, and David Shapiro, right, of Saul Ewing.

Trump's Tax Reform Proposal Answers Questions but Raises Many More

By Amanda K. Dichello 
and David G. Shapiro |

When President Donald Trump took office in January, one of the many questions about his administration was whether he would follow through on his campaign promises to repeal the federal estate tax and reform other wealth-transfer and tax-related measures.

Peter F. Vaira

Role of Prosecutor in the Federal Grand Jury: Who Watches the Foul Line?

By Peter F. Vaira |

The federal grand jury is a major factor in the success of the U.S. attorney in the prosecution of criminal cases. This success depends greatly on the integrity and professionalism of the individual prosecutor in the grand jury room. This column describes what the prosecutor does in the grand jury room and how, as a practical matter, that integrity and professionalism is left to the self-discipline of the individual prosecutor, and why the courts and the bar must always be wary that the degree of professionalism does not ­diminish. The degree of professionalism in the Eastern District of Pennsylvania grand jury continues to be very high.

Howard J. Bashman

Fit to Be Tied: When Appellate Courts Are Evenly Divided

By Howard J. Bashman |

Now that Neil M. Gorsuch has joined the U.S. Supreme Court as an ­associate justice, the prospect of evenly divided rulings from that court should dissipate next term. When the U.S. Supreme Court is evenly divided due to vacancy or recusal, the effect is that the judgment under review is affirmed, but no precedent is created to govern future cases presenting the same issue. The U.S. Supreme Court ordinarily does not issue any opinions setting forth the separate views of the justices in such cases.

Frank D'Amore

Look Ahead Now: What Will Your Legal Epitaph Be?

By Frank Michael D'Amore |

I recently listened to several speakers who discussed their near death ­experiences (NDEs). Although the circumstances that led them to that moment in their lives differed (such as surgery, acute illness, or an accident), each one discussed the unique clarity he had before almost dying.

Marcie Borgal Shunk of The Tilt Institute

What Law Firms Can Learn From Corporate Venture Funds

By Marcie Borgal Shunk |

Not unlike law firms, large ­companies constantly struggle to drive change within their organizations. When faced with monumental shifts such as the internet boom, iPhone or, more recently, analytics and artificial intelligence, ­several companies have profited—financially and, at times, strategically—through investments in the entrepreneurial, often smaller, ­companies pioneering change.

U.S. Federal Trade Commission.

The Defend Trade Secrets Act—One Year Later

By Thomas A. Muccifori |

On May 11, 2016, President Barack Obama signed into law the Defend Trade Secrets Act (DTSA) for the purpose of protecting American businesses from economic espionage. The law is notable for, among other things, providing easier access to federal courts as well as the possibility of double damages, attorney fees and the right to ex parte seizure of misappropriated information.

Reauthorization of the NFIP Could Expand Flood Coverage

By Stephen D. Daly |

On Jan. 10, a Long Island ­engineering company, GEB HiRise Engineering (HiRise), and one of its former executives pleaded guilty to charges that they had falsified engineering reports that were used by flood insurance adjusters and federal officials to assess damage to homes caused by Hurricane Sandy.

Overview of Coal Ash Disposal, Regulation and Beneficial Use

By Jillian C. Kirn |

According to the U.S. Energy Information Administration, the commonwealth of Pennsylvania is the largest generator of coal ash in the United States. Pennsylvania is home to roughly 100 coal ash disposal facilities, three of which have been classified as "high hazard" by the U.S. Environmental Protection Agency (EPA). Throughout the country, numerous electric generating facilities have been retiring coal-fired units in favor of natural gas combined cycle units. Still, many of those same electric generating plants find themselves undertaking large-scale coal ash mobilization projects resulting from decades of coal ash accumulation and catalyzed by new regulations from the EPA. With litigation both arising from, and in opposition to, the coal ash regulations, it is an area worth watching at the state and federal levels.

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Civil Asset Forfeiture Faces Multi-Pronged Attack

By Matthew T. Mangino |

Violence and trickery distinguish plunder from the voluntary, and mutually beneficial, exchange of wealth. There are two types of plunder—"illegal plunder" undertaken by thieves and robbers, and "legal plunder," usually undertaken by the government and officials "legally" exempt from the usual prohibitions against taking other people's property by force.

Employee Challenge Allowed to Proceed Against Tip Pool Practices

By Andrea Gosfield |

A recent federal court decision involving Chili's and its tipping practices points to courts' willingness to allow employee challenges to employer tip pool practices to proceed past motions to dismiss.

Alan Nochumson of Nochumson P.C.

Court: Landlord Not Liable for Injuries Sustained on Leased Premises

By Alan Nochumson |

In a recent decision, the Superior Court of Pennsylvania in Matthews v. Wince, 2017 Pa. Super. Unpub. LEXIS 1388 (April 13), upheld a trial court ruling that dismissed a lawsuit brought by a tenant against her landlord for personal injuries the tenant sustained when she slipped and fell on the front yard of the premises.

Angela Giampolo of Giampolo Law Group in Philadelphia

Gay Men in Chechnya Targeted: What Can You Do to Help?

By Angela D. Giampolo |

LGBTQ equality has been an ­important topic in the United States for the last several years, and the strides we've made to improve our laws and our lives in the last few years have been impressive. We may still have a way to go in changing laws and minds but as bad as it is in the United States, in other parts of the world, it's much, much worse.

Shkedy/Smolen

While Inadvisable—Emergency DIY Wills Can Work

By Rebecca Rosenberger Smolen and Amy Neifeld Shkedy |

In our last article, we mentioned that the project of getting around to signing a will is generally met with moderate to extreme procrastination. Many times people think about their wills right before embarking on a vacation—worrying about the plane going down. Like all things in life, though, it's better when the terms of a will are thought out in advance and not in a last-minute scramble. In the case of one's will, it is advisable to have a lawyer prepare it since a do-it-yourself will can easily lead to more problems than it solves.

Donald Trump.

Johnson Amendment Repeal Could Blur the Lines Between Politics and Religion

By June F. Swanson |

In early February at the National Prayer Breakfast, President Donald J. Trump reiterated a campaign promise to "totally destroy" the Johnson Amendment. The specific audience of invited religious leaders at the event was no doubt pleased by this rhetoric, but much of the country was likely left wondering, "What is the Johnson Amendment?"