All Columns

How Personality Assessments Can Help Your Career

By Dena Lefkowitz |

I have often said that I didn't begin to know myself until I was in my 30s and by then was already a litigator. An unhappy one. I chose to hang on and gut it out, confident that I could overcome my ­distaste for battle and learn to love litigation.

Drone Obsession Brings Out Manufacturers' Worst Fears

By Nathan R. Bohlander |

There is arguably no bigger stage in America than that of the Super Bowl halftime show. More than 117 million people watched as Lady Gaga appeared to jump from the roof of NRG Stadium and down to the sea of adoring fans below. But before showing off her acrobatic abilities, she offered a subdued rendition of "God Bless America" in front of a series of red, white and blue lights seemingly suspended in mid-air. The audience was completely unaware that this light show, which first formed a series of stars and then a ­fluttering American flag, were actually a swarm of 300 drones flying in perfect formation, all controlled by a single computer.

Challenges to Practices from Board Composition to Compensation

By Yelena Barychev 
and Jane Storero |

Today's board must have the right combination of skill and experience to oversee management in navigating the company's operations through the complex and shifting global and national economic and political landscape. It is no surprise that in this environment board composition keeps attracting shareholders' attention. According to PwC's 2016 Annual Corporate Directors Survey (2016 Survey), "investors are now exerting more influence than ever on how boards and management teams operate" and "the pendulum has swung from a 'board-centric' model ... to an 'investor-centric' model ... in which institutional investors and shareholder activists have an unprecedented say about board composition."

Christopher Carusone

Reducing the Risk of Corporate Criminal Liability

By Christopher D. Carusone |

Last fall, the U.S. Sentencing Commission published the results of its study on the federal ­prosecution of corporations and other organizational ­offenders. The results of that study, based on sentencing data for the calendar year 2015, says much about the types of organizations and offenses that are most likely at risk for federal prosecution and how corporate counsel can reduce the risk of corporate criminal liability in the new year.

Delaying the Process of Getting a Patent

By Lawrence E. Ashery |

At the end of the Gulf War, ­international inspectors searching through an Iraqi military site found a U.S. patent that explained how to manufacture nuclear material for an atomic bomb. The patent, U.S. 2,709,222, had been delayed from being granted for years. But in 1955 the U.S. government allowed the patent to issue, believing that its ­methodology was out of date, and no country would be interested in its contents. Evidently they were wrong.

The Best Interest of a Child in Custody Cases

By Judy Stouffer |

All states have some type of statute requiring that "the best interest of the child" be considered when making a custody decision. Pennsylvania's custody statute, 23 Pa.C.S. Ch. 53, defines the child's best interest via 16 factors affecting the safety of the child, ranging from which party is more likely to encourage and permit frequent and continuing contact between the child and another party to the mental and physical condition of a party or member of a party's household.

Robert H. Louis

Approaching Retirement Planning in Uncertain Times

By Robert H. Louis |

I once asked a retired partner from my firm what surprised him most about retirement. He said it was the amount of time he spent on the telephone dealing with health insurance issues.

Craig R. Tractenberg of Fox Rothschild

Lesson Learned: You Rarely Lose When You File the Motion

By Craig R. Tractenberg |

Stephanie could only laugh that the arrogant had been brought low. As predicted, the argument succeeded and she got what she sought, a waiver of attorney-client privilege and the embarrassment of the overly aggressive franchisor.

Corporate Governance

In the Legal's Corporate Governance supplement, read about change in control of transactions, board composition and compensation and proposals to change how directors are nominated.

What I've Learned From a Quarter Century in Legal Marketing

By Kimberly Alford Rice |

With 18 years of dedicated ­service as an in-house legal marketing professional with three Philadelphia regional law firms, I have had the privilege of having a front row seat into the inner workings of law firm life, ­governance and culture.

An Interview With Cole Silver: How to Succeed After Law School

By Dena Lefkowitz |

Last year, I read a post on LinkedIn titled, "Why Don't Law Schools Teach the #1 Factor for Success?" It was authored by Cole Silver, director of client relations at Blank Rome, and a perusal of his profile revealed a wealth of solid, crucial advice for lawyers on how to thrive regardless of layoffs, mergers and firm closures. Because marketing is a huge stumbling block for lawyers I coach, I asked Silver for an interview.

Inaction Results in No Distribution From Estate on Account of Lien

By Rudolph J. Di Massa Jr. 
and Walter W. Gouldsbury III |

Inaction by a secured creditor in a ­bankruptcy case can have many ­implications with respect to that ­creditor's claim and its lien on collateral, as well as on any potential distribution from estate assets on account of the secured claim.

What Firms Must Consider for 2017 Compliance

By Jessica L. Mazzeo |

The New Year has come and gone and with it came hopes of new beginnings, resolutions and endearing expectations for all. For employees, that meant professional improvement and career path refinement, while for employers, it means year-end report audits, tax filings, first quarter forecasts, and just as important, new considerations and restrictions regarding compliance.

James M. Beck

Appellate Notes: 2 Rule Changes and an Unusual Footnote

By James M. Beck |

Pennsylvania appellate practitioners should know about a number of things that have occurred since my last article. Two are rules changes. The third is a most unusual footnote in an en banc Pennsylvania Superior Court decision.

Blaine A. Lucas

Established Evidentiary Standards for Special Exception Applications

By Blaine A. Lucas and Alyssa E. Golfieri |

The Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101, et seq., (MPC), the state law establishing the framework for zoning and land use development regulations in Pennsylvania, authorizes a municipality to adopt a zoning ordinance containing provisions permitting uses of land by special exception administered by the zoning hearing board.

Samuel Stretton

There Aren't Many Advantages To Going on Retired Status

By Samuel C. Stretton |

I am an older practicing lawyer and I see I can place my law license on a retirement status. What are the advantages or disadvantages of doing so?

Creating Long-Term Value by Changing the Supply and Demand

By Tanuja M. Dehne |

Corporate governance encompasses the rules of engagement, the infrastructure, and the language spoken by the many players in and around the boardroom. Most importantly, however, corporate governance embodies the role of the boards of directors—the decision makers at the top of an organization. A fundamental tenet of corporate governance is that a board of directors makes informed decisions as it carries out its fiduciary duties in the best interests of its shareholders in order to create long-term shareholder value.

Navigating Pa. Law in Change of Control Transactions

By F. Douglas Raymond III 
and Amanda P. Garger |

The fiduciary duties of directors are often seen as the foundation of corporate governance and the protection of the interests of shareholders. The Pennsylvania Business Corporation Law (the BCL) has codified both the duty of care and the duty of loyalty in Section 1712, while there is no similar codification of these duties in Delaware. Instead, Delaware law regarding corporate fiduciary duties has largely been created by common law. Although the formulation of these duties appears similar in Pennsylvania and Delaware, Pennsylvania law approaches a challenge to a director's actions quite differently when dealing with a change of control situation.

Uptick in Proposals to Change How Directors Are Nominated

By Andrea Gosfield |

Activist shareholders are looking to have a greater say about the composition of the boards of U.S. public companies. The ultimate goal of these shareholders is to reshape how public company directors are traditionally selected. This movement has been caused, in part, by widely publicized corporate governance and senior management failures. Such scandals, including the recent Wells Fargo fraud scheme, have prompted a higher level of scrutiny not only on the oversight role of directors, but also, more fundamentally, on how qualified directors are nominated. This movement has created what is becoming a new "norm" regarding shareholder proxy access that many public companies have adopted.

Strategies to Achieve an Effective Board of Directors

By Nicole Stezar Kaylor |

Institutional investors, stock exchange rules and the Securities and Exchange Commission have all put enhanced corporate governance in the spotlight. Companies should embrace this and internally put a focus on corporate governance since the correct governance toolbox can create an effective and progressive board of directors to steer the company toward strategic and financial success.

Protecting Your Digital Property for Future Generations

By Wayne C. Buckwalter |

As the world becomes more virtual, so do our assets. The list of digital property is ever growing, as is its value. These assets include social media profiles, intellectual property, smartphones, emails, credit card points, airline miles, timeshare points, online storage and computing hardware as a start. Consider also all of your electronic passwords used to access your bank, investment, and retirement accounts, as well as your iTunes, Amazon, PayPal, eBay, and Bitcoin accounts. What happens to them if something happens to you?

Planning Now: Possible Federal Transfer Tax Repeal

By William C. Hussey |

Déjà vu all over again! The ­inauguration of President Donald J. Trump and seating of the Republican-controlled 115th Congress brings with it the renewed potential for repeal of the federal estate, generation skipping transfer and gift taxes. Just as the federal estate tax ends the celebration of its 100th anniversary, there is a renewed interest in repealing the "death tax" in Washington.

The Philadelphia Association of Paralegal Calendar of Events

• On March 15, a professional development committee meeting is scheduled for 12:30 p.m. at Haggerty, Goldberg, Schleifer & Kupersmith, 1835 Market St., 27th floor. Philadelphia Association of Paralegals student members are ­welcome to attend. Come network with other students and paralegals in the field. Feel free to ask questions and discuss current trends. RSVP to Christine Flynn at pdc@philaparalegals.com.

Paralegals: Get to Know Corporate Law Buzzwords

By Vivian Luckiewicz |

"Bean counter," "all-hands meeting," "circle back," "don't reinvent the wheel," "phone tag," "bring your own device," the "deep web," the "internet of things." These are just a few examples of business jargon or corporate lingo that provides a shortcut word or phrase for the communication of a bigger idea within the world of business. Unfortunately, most business jargon is vague in meaning so not everyone immediately understands what you're talking about. For a newer paralegal, it can feel like being in a foreign ­country where you don't speak the language.

Young Lawyers.Business of law

The True Measure of an Associate: Helping Others in Need

By Jonathan D. Klein |

When dealing with long hours, billable hour requirements, phase and task codes (the worst), looming deadlines and interesting personalities, it is sometimes hard to remember that we in the private sector are extremely fortunate. As private practice associates, we are conditioned to work hard and focus on firm clients to ensure the firm remains ­profitable and successful. Despite these marching orders, we must not forget that as lawyers, we have an inherent obligation—now more than ever—to protect and help those who cannot on their own, to provide quality representation to those less fortunate, and simply, to do good.

Will Immigration Policies Squelch Phila.'s Growing Tech Scene?

By William A. Stock |

The Trump administration is not even a month old, and has already ­overwhelmed the news, social media and many private discussions. To cap off his first week in office, the president signed an executive order he called "Protecting the Nation From Foreign Terrorist Entry into the United States." Most of the attention to that order focused on the complete ban of entry to nationals of seven majority-Muslim countries, including refugees, Iraqi nationals who worked with the U.S. military, and even long-time green card holders.

Time Clock

What's the Deal With the New Overtime Rules?

By Adam Brown |

Changes in overtime regulation are afoot. Or are they? The Department of Labor (DOL) had issued new overtime regulations that were scheduled to take effect Dec. 1, 2016, and were ­expected to affect 4.6 million currently exempt ­employees—making them overtime-eligible. The new rules had significantly ­increased the salary thresholds, entitling employees under the new threshold to ­overtime pay.

New Bill Would Require Disclosure of Property’s Flood History

By Victoria Hudgins |

Pennsylvania senators are mulling a bill that would require a landlord to disclose to any prospective tenant a residential unit's flood history.

Wealth Management/Trusts & Estates

In the Legal's Wealth Management/Trusts & Estates supplement find out more about protecting your digital property, using bloodline multi-generational trusts and estate planning in today's environment.

Foreign Parents With U.S. Children: Trusts Play an Important Role

By Gary A. Phillips and Steven M. Saraisky |

The adverse tax result that follows from foreign parents leaving their assets outright to U.S. children can be avoided with advance planning.

Howard J. Bashman

Increased Senate Partisanship Threatens Future of US Supreme Court

By Howard J. Bashman |

One year ago, Justice Antonin Scalia died unexpectedly on a hunting excursion to Texas. That same day, in the early stages of a presidential campaign, the Republican leadership in the U.S. Senate announced that it would refuse to consider or ­confirm any replacement for Scalia until after President Barack Obama's successor took office in January 2017.

Michael E. Bertin

Jurisdiction and Modifying Child Custody Orders

By Michael E. Bertin |

In Pennsylvania, jurisdiction in child custody cases is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Jurisdiction in child custody cases is an issue that arises often and has been seen numerous times in appellate decisions.

Estate Planning (Again) in Today's Environment

By Vance E. Antonacci |

With the election of Donald J. Trump as president and a Republican-controlled legislature, there is a strong possibility of comprehensive tax reform. The nature and scope of any such reform, however, is difficult (if not impossible) to predict.

Repeal of Estate Tax: Practical Questions in Uncertain Times

By Amanda K. DiChello |

During the 2016 presidential campaign, President Donald Trump vowed on his website to repeal the federal estate tax—the 40 percent tax applicable to estates valued in excess of $5.49 million—in its entirety.

Using Bloodline Multi-Generational Trusts in Estate Planning

By Herbert R. Fineburg |

Most clients view estate planning as a way to address how their often-unprepared ­children and grandchildren will handle a large inheritance and whether the inheritance will stay within the family's bloodline.

Francis J. Lawall

A New Page in the Tribune Bankruptcy Diary

By Francis J. Lawall 
And Francis A. Weber |

For the last nine years, the ­bankruptcy of media conglomerate Tribune Co. has produced a long diary of court opinions interpreting a variety of Bankruptcy Code provisions. It is time for a new entry. Last month, the U.S. District Court for the Southern District of New York dismissed with prejudice a fraudulent conveyance claim brought by a litigation trustee seeking recovery on behalf of the company's unsecured ­creditors in In re Tribune Fraudulent Conveyance Litigation, No. 11-md-2296, 2017 BL 5202 (S.D.N.Y. Jan. 6).

Christian Petrucci

Pa. Supreme Court Decision Foreshadows 'Protz'?

By Christian Petrucci |

With every passing month, the elephant in the room that goes by the name Protz v. Workers' Compensation Appeal Board (Derry Area School District) grows bigger while the Commonwealth and Supreme courts continue to churn out case after case dealing with impairment rating evaluations (IREs) under Section 306(a.2) of the Workers' Compensation Act.

Samuel Stretton

It's OK to Consult an Ethics Committee as Long as You Inform Your Client if There Is a Conflict

By Samuel C. Stretton |

Our firm has an ethics committee. I wish to consult with the ethics committee about issues arising out of my representation of a client of a firm. Can I do so without creating a conflict with the client, or do I have to notify the client? Would your answer change if my consultation was not with the in-house ethics committee, but I sought the advice of outside ethics counsel?

gavel

Court Rejects 'Res Ipsa Loquitur Dressed Up as Expert Opinion'

By Joseph Blum and John Lyons |

Experts in Pennsylvania must rely on scientific authority and apply that authority to the facts of the case. Moreover, "res ipsa loquitur dressed up as expert opinion" is inadmissible under Pennsylvania Rule of Evidence 702.

Employment Law Issues in Pennsylvania's Medical Marijuana Act

By John A. McCreary Jr. |

Act 16 of 2016, the Medical Marijuana Act (MMA), 35 Pa.C.S.A. §10231.101, et seq., effective May 17, 2016, puts Pennsylvania among the growing number of states permitting the use of marijuana for prescribed medicinal purposes. The MMA, like all state laws purporting to "legalize" marijuana use, squarely conflicts with federal law, which still considers marijuana to be a Schedule 1 substance under the Controlled Substances Act with no legitimate medical uses, see 21 U.S.C. Sections 812(b)(1)(A)-(C); 844(a).

Four Exceptions to the 'Coming and Going' Rule: Protecting the Commute

By David F. Stern and Taylor J. Cohen |

Pennsylvania's workers' compensation statute is designed to protect workers who are injured, killed or disabled in the course of employment. With its origin dating back to 1915, the statute and accompanying administrative legal system has continuously adapted in an attempt to protect the ever-evolving Pennsylvania workforce.

High Court Examines Forfeiture in Drug Conspiracies

By Stephen A. Miller 
and Haryle Kaldis |

The federal criminal forfeiture ­statute, 21 U.S.C. Section 853(a), provides that any person convicted of a ­federal drug crime must forfeit "any property ­constituting, or derived from, any proceeds the person obtained, ­directly or indirectly, as the result of such ­violation." In Honeycutt v. United States, the U.S. Supreme Court will determine the reach of that statute in drug conspiracy cases. Specifically, the court will examine whether the statute requires all members of the conspiracy to be held jointly and severally ­liable for the forfeiture of all reasonably foreseeable proceeds of the conspiracy—even a co-conspirator that never personally ­"obtained" any proceeds.

Stay Clean in '17: 17 Tips to Do E-Discovery Right

By David R. Cohen |

For the last decade, e-discovery has been the new frontier in litigation. There is a lot that can go wrong in this complicated multi-stage process, at this point of intersection between legal obligations, advanced technology, and litigation strategy.

How to Effectively Conduct Discovery in a Mobile-First World

By Jason Lichter 
and Joseph Tate Jr. |

Given how indispensable text and chat apps have become in our personal lives, it should come as no surprise that they have begun to infiltrate day-to-day communications in corporate America as well.

gavel

Constraints on a Federal Magistrate Judge in Civil Litigation

By Donna Doblick |

Because it is common for federal civil cases to be assigned to both a district judge and a magistrate judge, this article examines the roles a federal magistrate judge can—and cannot—play without the parties' consent.

Sid Steinberg

ADA Tension Highlighted in Return-To-Work Case

By Sid Steinberg |

Returning employees who are injured at work to their positions can leave employers navigating between "a rock and a hard place." The often ­competing interests between obligations under the Americans with Disabilities Act competing with the workers' compensation laws render most return-to-work situations a challenge.

E-Discovery

In The Legal's E-Discovery supplement, learn about discovery in a mobile-first world, get more comfortable with TAR and get some insights on pretrial management.

Getting Comfortable with Technology Assisted Review

By Ben Barnett, Matthew B. Tate and Liesl Sachse |

Technology Assisted Review or (TAR) has been available as a tool in the e-discovery marketplace for roughly a decade. In those early days, some attorneys viewed TAR as simply a new label for existing smart review strategies.

Spoliation of Electronic Information Under Amended Federal Rule 37(e)

By Alan Klein 
and Kimberly G. Lippman |

Federal Rule of Civil Procedure 37(e), amended in December 2015, imposes sanctions for a party's failure to preserve electronic data. Under the amended Rule, a court must balance the severity of sanctions against the intent of the spoliator and any prejudice borne by other parties.

Front-End Planning, Back-End Savings: E-Disco and Pretrial Management

By Joelle Epstein |

Electronic discovery, otherwise known as e-discovery, has exponentially increased the number of documents exchanged during litigation, as in Race Tires America v. Hoosier Racing Tire, 674 F.3d 158, 160 n.1 (3d Cir. 2011). E-discovery has also contributed significantly to soaring pretrial costs. Fortunately, there are strategies a litigation team can use to reduce documents produced and received. For example, we can object to overbroad discovery. We can offer or request summary information to replace raw data when review of that data is unnecessary (e.g., financial spreadsheets reflecting purchased products where that issue is relevant). We can demand that search terms be applied to custodians instead of agreeing to search all emails from custodians. We can test our search terms using early case assessment strategies and revise those terms when they miss the mark.

Generic Machine Learning Solutions for E-Discovery

By Jonathan Berger |

In predictive coding the team has developed generic models for relevance and privilege that can be moved from production to production though use of dynamic feature development. In document classification we have a library of over 100 document type models that are automatically run and auto coded for any production. In unitization our solution works on any set of images that do not have any document boundaries.

Charles F. Forer

Is an Unsigned Arbitration Agreement Enforceable?

By Charles F. Forer |

Bob's keen advice to Oxford Berries, a client that provides agricultural services to berry farmers: "Get the agreement in writing. Oral agreements are too risky."

Alternative Dispute Resolution

In The Legal's Alternative Dispute Resolution supplement, read about arbitration limitations and the FAA, early intervention, mediation of liability and coverage and private mediation for LEP persons.

Unit Owners Are Always Responsible for Association Assessments

By Alan Nochumson |

A recent decision handed down by the Commonwealth Court of Pennsylvania in Logans' Reserve Homeowners' Association v. McCabe, Nos. 820 C.D. 2016, 821 C.D. 2016. 2017 Pa. Commw. (Jan. 4), illustrated that there is actually a third certainty in life if you own a residence in a planned ­community in Pennsylvania—your ­obligation to pay common assessments charged by the homeowners' association.

Swimming With 'Shark Tank': An IP Perspective (Episode 14)

By Michael F. Snyder |

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.

Carl W. Hittinger

The Antitrust Points of View of Supreme Court Nominee Neil Gorsuch

By Carl W. Hittinger 
And TYson Y. Herrold |

Last March, we wrote a series of articles discussing Supreme Court Justice Antonin Scalia's antitrust legacy on the Supreme Court. We noted Scalia's admitted discomfort with the Sherman Act, specifically with holding corporate defendants, even monopolists, ­liable absent strong evidence of anti-competitive conduct. His likely successor appears to possibly hold similar views of the ­antitrust laws, ostensibly applying the Sherman Act to avoid replacing procompetitive, free-market behavior with judicially imposed, anti-competitive fiat, based on the record presented.

Angela Giampolo

The Beginning of an LGBTQ Civil Rights Rollback?

By Angela D. Giampolo |

I won't mince words: each day, values that we hold dear—values of ­inclusion, tolerance and equality are in danger like never before. Over the past two weeks, we've seen Americans ban together in ­unprecedented ways from the Women's March in Washington, D.C., to a small town in Alaska where two feet of snow fell as they marched, to hundreds of ­international cities around the world and most recently at airports everywhere. It has been inspiring.