James W. Cushing

US Supreme Court Weighs in on Threats Over Social Media

By James W. Cushing |

The new reality of social interaction includes the popular, and seemingly always proliferating, social media websites like Facebook and Twitter. Considering the increasing ubiquity of social media, it was only a matter of time before the U.S. Supreme Court would weigh in on its use, which it had the opportunity to do in the matter of Elonis v. United States, 135 S.Ct. 2001 (2015).

Abraham J. Gafni

Rights and Obligations of Nonsignatories in Arbitration: Part II

By Abraham J. Gafni |

Generally, a party that has not consented to arbitration may not be forced to submit to it.

Uber headquarters in San Francisco

Uber Model Leads to Heightened Risk of Distracted Driving

By Ryan D. Hurd |

After dining near Rittenhouse Square last month, I faced the challenge of making the 25-block trip home. Walking the distance in the summer heat was only slightly less offensive than competing with a half-dozen other couples each trying to flag down a taxi. Fortunately, I previously downloaded the Uber app. With a few taps on my phone, a black Uber SUV appeared. I jumped in and basked in the air-conditioned cool, while taking in the warm glow of two dash-mounted mobile devices stationed next to the built-in vehicle navigation screen.

Charles F. Forer

Drafting Agreements to Avoid Picking the Wrong Arbitration Forum

By Charles F. Forer |

Bob has studied the rules of various arbitration providers. He knows an effective advocate chooses the arbitration forum that offers the rules best suited for the particular controversy. So, for instance, "If you want depositions, why not pick an arbitration forum whose rules expressly allow depositions?" Always the riddler, Bob put this question on his office wall.

Local Counsel and the UIDDA: Must You Retain? Should You Retain?

By Mark E. Seiberling and Joshua J. Voss |

The Uniform Interstate Depositions and Discovery Act (UIDDA) does not require attorneys to retain local counsel in order to domesticate subpoenas across state lines, but practical considerations should have you picking up the phone to engage local representation.

Kenneth Racowski

Post-Closing Control of Seller's Attorney-Client Privilege in M&A

By Kenneth L. Racowski |

Litigation involving mergers, asset acquisitions or other change-in-control transactions can give rise to complicated questions concerning the attorney-client privilege. In recent years, a developing body of case law has emerged regarding the control of the attorney-client privilege in the context of mergers and acquisitions.

Abraham J. Gafni

Rights and Obligations of Nonsignatories in Arbitration: Part I

By Abraham J. Gafni |

It is generally understood that the obligation to submit to arbitration (unless mandated by statute or court rule) arises by reason of a written (and occasionally oral) contractual obligation entered into by the parties.

Josh Cohan

Presumed Damages May Be Available in Constitutional Torts

By Joshua Cohan |

Your client's constitutional rights have been violated but your client has not suffered any injury other than the deprivation of the constitutional right itself. The case appears to be a loser. Is it really worth pursuing if you cannot prove an actual injury? This scenario has certainly presented itself to many legal practitioners. Even though it looks like you may be out of luck in getting damages for your client, there might be another way.

Charles F. Forer

Interlocutory Appeals of Orders Denying Applications for Arb

By Charles F. Forer |

Having read so many cases on the "policies favoring arbitration," Bob has several mantras he mutters to anyone who will listen. (A shrinking audience.) One mantra: Parties have a right to take an immediate interlocutory appeal from a trial court order that refuses to compel arbitration.

EEOC Sues Company for Inflexible Employee Leave Policy

By Peter J. Kreher and Frank P. Trapani |

Earlier this year, the Equal Employment Opportunity Commission (EEOC) sued an employer, alleging that it violated the Americans with Disabilities Act (ADA) by firing disabled employees who requested additional time off after they had exhausted their paid time off and/or any unpaid leave to which they were entitled under the Family and Medical Leave Act (FMLA).

Will Sylianteng

Attenuation of the Attorney-Client Privilege

By Will Sylianteng |

In One Beacon America Insurance v. Philadelphia Indemnity Insurance, No. 2012-cv-4490 (April 13, 2015, Lackawanna CCP), the Lackawanna County Court of Common Pleas held that the plaintiff insurance company's inadvertent disclosure of an intra-office memorandum, referred to as a case conference sheet, was not privileged and therefore did not open the door to a subject-matter waiver of attorney-client privilege, despite the fact that it revealed sensitive communications from the plaintiff's attorney.

Dave Dambreville

Defining Terms of an Insurance Policy After 'Rourke'

By Dave Dambreville |

The language of an insurance policy must be clear and specific in order to effectuate the intent of the insurer and insured. Failure to sufficiently define key terms and conditions of a policy in a plain and unambiguous way can have the effect of broadening the scope of coverage of the insurance policy. For best practices, insurers should be advised to specifically define each term that may have an impact on the scope of coverage of their policies.

Innovator Liability Approach in Pharmaceutical Litigation

By Miriam Barish |

One of the first questions I ask potential clients in pharmaceutical litigation is whether they took the name brand of the drug or the generic version, as I know under the current law in most states they will only have an actionable claim if they took the name brand. This limitation originates from the U.S. Supreme Court's ruling in Pliva v. Mensing, 131 S.Ct. 2567 (2011).


Protecting Your Trade Secret and Confidential Information

By Shannon McClure and Brooke Wallace |

In today's world of high-paced technology, companies face greater challenges than ever in protecting their confidential and proprietary information. Employees are more mobile than ever—and so is every employer's sensitive information.

gavel and book

Current Status of Intended Use, Intended User Doctrines

By Patrick C. Lamb and Patrick Devine |

In November 2014, the Pennsylvania Supreme Court issued its landmark opinion in Tincher v. Omega Flex. Among other things, the court held that a plaintiff can satisfy the "defective condition" element of her products liability action by proving that the product in question was "dangerous beyond the reasonable consumer's contemplations."

Abraham J. Gafni

Don't Ignore the Details of the Arbitration Agreement

By Abraham J. Gafni |

Often the alternative dispute resolution provisions in a contract are considered only after a lengthy and complex negotiation involving the substantive aspects of a transaction.

Keeping the Confidential Arbitration Proceeding Confidential

By Charles F. Forer |

You want to find a well-drafted and carefully-thought-out arbitration agreement? Ask Bob to look into his form file. He will pull out just what you need. Over the years, he has refined and refined his forms—to correct errors he made in prior iterations—and he now has a form arbitration agreement that is the best for any type of dispute and for any type of issue. At least that is what Bob tells his colleagues.

FDA Poised to Enact Rule That Will Advance Consumer Safety

By Tracy A. Finken |

On March 27, the U.S. Food and Drug Administration held a public meeting regarding its proposed generic-drug labeling rule. The rule proposed by the FDA in November 2013, titled "Supplemental Applications Proposing Labeling Changes for Approved Drugs and Biological Products," would allow a generic manufacturer to use the CBE-0 process to implement a safety-related labeling change for its drug unilaterally, prior to the FDA approving the label change.

Will Sylianteng

Why Aren't We Videotaping More Depositions?

By Will Sylianteng |

Have you ever left a deposition and felt like you nailed it? Not because you asked every possible question (we all know that never happens, as there is always that one question everyone remembers only after adjournment), but because the look on the deponent's face after your thorough inquisition was priceless. You wished you had a video of it, right? But you don't. Why?

Emile Ashe

Make a Personal Injury Mass-Tort Client Feel Like Your Only Client

By Emily Ashe |

It goes without saying that things change with time, and the legal industry has been no exception. Mass torts have become increasingly more common and have immensely changed the landscape of the legal industry.

Kenneth Racowski

No Consensus on Application of 'Comcast v. Behrend'

By Kenneth L. Racowski |

It has been two years this month since the U.S. Supreme Court issued its decision in Comcast v. Behrend, 133 S. Ct. 1426 (2013), reversing the U.S. Court of Appeals for the Third Circuit's class certification of antitrust claims brought by more than 2 million cable subscribers.

Injunction Barring Parallel State Class Action Rejected

By Frank P. Trapani and Peter J. Kreher |

There is a split of authority over whether a federal district court that has preliminarily approved a class action settlement may enjoin class members from pursuing related litigation pending final approval of the settlement. In a recent opinion authored by Judge Frank Easterbrook, the U.S. Court of Appeals for the Seventh Circuit entered the fray and held emphatically that federal district courts lack the power to issue such injunctions, at least with respect to litigation pending in state court.

Abraham J. Gafni

Who Decides Res Judicata and Collateral Estoppel in Arbitration?

By Abraham J. Gafni |

Litigating parties recognize that both res judicata (claim preclusion) and collateral estoppel (issue preclusion) apply not only to court decisions but to those of an arbitrator as well.

Will Sylianteng

District Court Sanctions Attorney for Ghostwriting Expert Report

By Will Sylianteng |

It has been less than one year since the Pennsylvania Supreme Court codified, via amendment of the civil practice rules, its holding in Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa.2014). In Barrick, an evenly divided court affirmed a ruling issued by an en banc panel of the Superior Court, and held that all communications between an attorney and his testifying expert were shielded from discovery by the attorney work-product doctrine.

Could Attorneys Be Replaced by Robots in the Future?

By Joseph Fantini |

In the not too distant future, will robots be capable of performing the jobs of the vast majority of the readers of this article? A recent study performed by The Boston Consulting Group, "The Shifting Economics of Global Manufacturing: How a Takeoff in Advanced Robotics Will Power the Next Productivity Surge," predicted that by 2025, the percentage of manufacturing jobs performed in the United States by automated "robots" will increase from the current 10 percent to 25 percent.

Charles F. Forer

Can Arbitrating Parties Seek Instructions From the Court?

By Charles F. Forer |

It was a very complicated dispute. The parties threw out words like "unamortized," "depreciation," "EBITA" and "capital improvements." Bob's head was spinning. At least he had the foresight to convince the other side jointly to retain a certified public accountant to determine the "unamortized cost of tenant's improvements according to the terms of the lease." The parties agreed the accountant's decision would be "final and binding." It all sounded like an arbitration to Bob. That made him comfortable.

Is Deletion of a Key Document After Notice Spoliation?

By Michael T. Murphy |

A recent spoliation sanctions decision from the Eastern District of Pennsylvania shows that reasonableness, not perfection, is the standard with respect to document preservation obligations. That decision, by U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania, found that an insurance company's automated deletion of a key document pertaining to a notice of the termination of a written insurance policy four days after it received a claim on that policy did not constitute spoliation.

Enforceability of Arbitration Clauses in Engagement Agreements

By Aya Salem |

Often said to be a more cost-effective method for litigating cases, many law firms and attorneys are now including arbitration clauses in their attorney-client contracts and engagement letters. A look at recent cases dealing with the enforceability of arbitration clauses shows that while arbitration itself may be cost-effective and straightforward, litigating the legality or applicability of arbitration clauses can prove time-consuming and expensive. Certain considerations, however, can help reduce that cost and time.

Will Sylianteng

Five Predictions for Litigation in 2015

By Will Sylianteng |

As this year comes to a close, law firm leaders will prognosticate about what trends will affect their bottom lines in 2015. Accordingly, this is the perfect time to do a little prognosticating of my own, and to present five predictions of trends that will affect litigation firms in 2015.


A Look at Past, Present and Future of Pelvic Mesh Litigation

By Shayna T. Slater |

The transvaginal mesh litigation has been ongoing for several years now but the end may be in sight (or at least visible with a telescope).

Charles F. Forer

Can an Arbitrator Raise the Statute of Limitations Sua Sponte?

By Charles F. Forer |

The answer to Bob's arbitration demand included a laundry list of affirmative defenses: waiver, estoppel, license, statute of frauds, immunity, release, statue of limitations, duress, accord and satisfaction, laches, res judicata, and so forth. Didn't the respondent's lawyer read the demand? How does the statute of frauds apply in a case where the claimant seeks relief under a contract that both parties indisputably signed? And the respondent is a Fortune 500 company. Can it claim "duress" with a straight face? Bob scratched his head and chalked his adversary's "strategy" up to habit. Bob figured his adversary copied and pasted the same affirmative defenses into every answer no matter what the arbitration demand said.

Abraham J. Gafni

Explaining Waiver of Court Trial in Arbitration Agreements

By Abraham J. Gafni |

When an agreement provides for arbitration, what language waiving access to the courts will be enforceable, particularly when one of the parties may be unsophisticated?

Adverse Event Letter: What Is It and What Is Its Significance?

By Stephen J. Pokiniewski Jr. |

You get a telephone call or email from a potential client advising that he or she or a family member was in the hospital recently and a problem occurred in the course of his or her medical care causing injury or death. You are advised that shortly after the event he or she was given a letter from a hospital representative expressing the hospital's concern for what happened and briefly discussing the event.

Will Sylianteng

Adapting Pleading Practice in the 24-Hour News Age

By Will Sylianteng |

Last month, both traditional and social media were ablaze with quotes from comedian Tracy Morgan in response to Wal-Mart's filed answer in the case Morgan v. Wal-Mart Stores, (2014 DNJ Civil Action No. 14-cv-04388), a case currently pending in the U.S. District Court for the District of New Jersey.

Using Documents to Prepare a Rule 30(b)(6) Witness

By Shannon McClure and Regina Nelson |

When representing a corporation or other organizational entity in federal court, it is not uncommon to be presented with a Federal Rule of Civil Procedure 30(b)(6) deposition request. There are many issues to consider when presented with this type of deposition notice.


Fifth Circuit Offers Guidance on Corrective Disclosures

By Peter J. Kreher and Frank P. Trapani |

In Public Employees' Retirement System of Mississippi v. Amedisys, the U.S. Court of Appeals for the Fifth Circuit offered important guidance on how to evaluate whether alleged corrective disclosures meet the standard for pleading loss causation established by the U.S. Supreme Court in Dura Pharmaceuticals v. Broudo. This article describes the court's analysis and discusses the implications for plaintiffs and defendants in securities fraud cases.

Charles F. Forer

Blocking the Use of Mediation Documents in Litigation

By Charles F. Forer |

Bob prepares intensely for mediation. He spends a lot of time preparing his client so the client's "extemporaneous" remarks in joint session send a strong message to the other side and suggest creative ways to settle the dispute.


Choosing Mass Tort Litigation Isn't for Every Practitioner

By Melissa Fry Hague |

As counsel from both sides of the aisle look to diversify practice areas in an ever-competitive landscape, the realm of "mass tort" has an appealing ring to it for those who have never practiced in it before.

U.S. Securities & Exchange Commission building in Washington, D.C. August 21, 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

Court Affirms Importance of Private Remedies for Insider Trading

By Peter J. Kreher and Frank P. Trapani |

In Kaplan v. SAC Capital Advisors, --- F. Supp. 2d ---, (S.D.N.Y. Aug. 13, 2014), the U.S. District Court for the Southern District of New York addressed several important questions regarding the remedies available under the federal securities laws for private plaintiffs injured by insider trading. This article reviews three key aspects of the court's opinion and discusses their implications.

Kenneth Racowski

Split of Authority on Strict Liability and Implied Warranty Claims Resolved

By Kenneth L. Racowski |

Two federal district court decisions issued this summer have brought clarity to the question of whether Pennsylvania law bars strict liability and implied warranty claims against pharmaceutical and medical device manufacturers.

Supreme court building in Washington DC, USA.

Will the Supreme Court Take a Stand on Standing in BP Case?

By Abby L. Sacunas and Michael Melusky |

It is axiomatic that to certify a class, plaintiffs must show all members satisfy Article III standing and Rule 23 requirements. While federal courts "do not require each member of a class to submit evidence of personal standing, a class cannot be certified if it contains members who lack standing" to pursue the claim(s) asserted, according to Halvorson v. Auto Owners Insurance.

Abraham J. Gafni

Ruling Shows Difficulty Establishing Arbitrator Partiality

By Abraham J. Gafni |

Unlike judges, arbitrators are generally selected either by the disputants themselves or through a party-approved process. In such circumstances, it might be imagined that both partiality and correctness of decision would be subject to close judicial scrutiny. In fact, reviewing courts will rarely vacate arbitrators' awards on these bases.

A New Look at the Litigation Privilege in Asbestos Case

By Adrianne Walvoord Webb |

In a unanimous, precedential—and exceptional—opinion issued last week in Williams v. BASF Catalysts LLC, No. 13-1089 (3d Cir. N.J. Sept. 3, 2014), the U.S. Court of Appeals for the Third Circuit partly overturned the U.S. District Court for the District of New Jersey and reinstated the fraud and fraudulent concealment claims for asbestos victims and their families in a case against BASF Catalysts LLC, the world's largest chemical maker. Factually speaking, asbestos victims still have a claim against BASF. Emotionally speaking, this decision is a powerful wake-up call for lawyers who take creative license in stretching, and manipulating, legal privileges beyond the point that ethics and the law allows.

Will Sylianteng

Identifying and Preventing Scorched-Earth Litigation

By Will Sylianteng |

As attorneys, we would like to believe that we are members of a civilized and high-brow profession. And why shouldn't we? Our clients bicker, fight and can't stand each other. Then, they hire us to civilly negotiate their claims in their stead, and authorize us to take the case to trial only if those negotiations fail.

Faced With a Page Limit? It's More an Opportunity Than a Limit

By Bart D. Cohen |

Oft-quoted humorist Will Rogers said "the minute you read something that you can't understand, you can almost be sure that it was drawn up by a lawyer." We have since made ourselves far more comprehensible to laypeople. But even most laypeople can achieve comprehensibility in their writing. Where choosing words carefully is an integral part of our practices, we might aspire to a higher standard—concise comprehensibility. But there are still among us too many brevity-challenged litigators, which is why courts impose page limits.

Larry E. Coben

Pennsylvania's Approach to Joint and Several Liability

By Larry E. Coben |

In an article published in the Law Weekly on July 21 titled "Deep Pockets Gone With Joint and Several Liability Repeal," Max Mitchell reviewed changes made in 2011 to the comparative negligence statute, 42 Pa. C. S. Section 7102 (2011), and interviewed several practicing attorneys who provided their views that these amendments may have dire consequences for economic recovery by consumer victims against multiple tortfeasors.

Charles F. Forer

Are Parties Entitled to Using Impartial Arbitrators?

By Charles F. Forer |

What is an "independent" arbitrator if not an "impartial" arbitrator? The Texas Supreme Court had no difficulty answering this question. It said "independent" means only the arbitrator could not be employed by or otherwise under the control of one of the parties.

Lawyers Have Responsibility to Exemplify Distraction-Free Driving

By Joel Feldman |

Texting while driving is illegal in Pennsylvania. There is currently no other activity involving the handheld use of electronic devices that is illegal in Pennsylvania, but that does not mean that use of these devices while driving, for purposes other than texting, is safe. As lawyers, we are busy, trying to be as productive as we can, and often are traveling in our cars. It is not just teens, our children, who seek instant access and responses. Our cars can become extensions of our offices and many lawyers will drive while distracted, texting, reading or sending emails, or accessing the Internet on cellphones. As lawyers, parents and leaders in our communities, we have an obligation to drive safely and minimize distractions, setting an example for others to follow.

Dave Dambreville

The Inconvenient Truth About Forum Non Conveniens

By Dave Dambreville |

As our nation's economy continues to grow globally, lawsuits involving international parties will rise accordingly. For the courts of Pennsylvania, this means that more cases will require an inquiry as to whether a foreign forum is more appropriate for hearing a given case.


New Standards Announced for ERISA Company Stock Cases

By Peter H. "Tad" LeVan Jr. |

In the final week of its term, the U.S. Supreme Court issued the opinion of Fifth Third Bancorp v. Dudenhoeffer, --- U.S. --- (June 25, 2014), an important decision defining the standard of care that the Employee Retirement Income Security Act of 1974 (ERISA) imposes on certain plan fiduciaries. While failing to generate the media coverage of other hot-button opinions the court issued that week, the impact of Fifth Third to ERISA practitioners cannot be overstated: It fundamentally changed the legal landscape of ERISA company stock cases and will have far-reaching effects on ERISA jurisprudence for years to come.

Third Circuit Rules Debtor Need Not Validate Debt Pre-Suit

By Peter J. Kreher and Frank P. Trapani |

In a recent decision, the U.S. Court of Appeals for the Third Circuit addressed an important issue regarding the Fair Debt Collection Practices Act (FDCPA). In McLaughlin v. Phelan Hallinan & Schmieg, -- F.3d --, (June 26, 2014), the court addressed whether a consumer must first seek "validation" of a debt under the FDCPA as a prerequisite to filing a lawsuit. This article reviews the FDCPA and the court's decision, which held that debtors may now sue under the FDCPA without first attempting to have a debt collector validate a disputed debt, and discusses the implications of the court's decision.

Should Arbitration Agreements Fix the Time for the Award?

By Abraham J. Gafni |

A desire for the speedy resolution of a dispute often impels parties to opt for arbitration instead of court trial. This expectation is based upon the likelihood of an earlier hearing date, proceedings involving less restrictive rules of evidence and procedure, and finality of an award that is typically non-appealable.

Enhancing the Mediation Process With Early Ex Parte Calls

By Harrie Samaras and Judy Weintraub |

Mediated settlements are often achieved through a series of sessions with varying lengths and formats (e.g., in-person, phone, email, videoconference, or a combination of these). The ex parte call is just one of these sessions. Comparatively short in time, it can yield potentially large returns.

Young Lawyers: It Pays to Ask 'Why' When Doing Your Work

By Michael Schafle |

Associates, and some partners, often receive assignments without much guidance from supervising attorneys. Such is the nature of a busy litigation practice and is the status quo of life in most law firms. Emails or personal requests to "cover this deposition," "complete that motion," or "retain this expert" are the norm. Frequently, these tasks are viewed as nothing more than finite assignments where a second thought is not given to them after they are completed. However, viewing these tasks as an end themselves and not as a means toward a more complete end or goal can be detrimental to one's practice both in terms of quality of work and sacrifice of precious time. To cure this shortsighted approach to the task-oriented nature of associate practice, I find that it is always important to ask the most simple of questions regarding your work: "Why?"

Charles F. Forer

Disputing Whether the Parties Agreed to Arbitration

By Charles F. Forer |

Bob is consistent and unwavering in his faith about all things he finds important. Take arbitration. Sure, he concedes, you give up your right to a jury trial and to appellate review of legal errors, no matter how glaring. But you get so much in return.

Asher Brooks Chancey

Replacing the Collateral-Source Rule With Paid or Payable

By Asher Brooks Chancey |

On April 1, the "individual mandate" feature of the Patient Protection and Affordable Care Act (also known as Obamacare) went into effect. We are now in a new era in which Americans are required to have health insurance, and the failure to do so is a violation of law.

Abraham J. Gafni

Will a Court Ever Order Discovery in Aid of Mediation?

By Abraham J. Gafni |

Discovery disputes are among the most common problems presented to courts. These, however, would not appear to be of particular concern when voluntary mediation is involved. Generally, parties who have agreed to mediate also recognize that success is based in great part upon an exchange of information that will allow for a proper assessment of the case. Moreover, when a question arises as to what disclosures are appropriate, the mediator will often assist the parties in resolving this issue.

Madeline M. Sherry and Stephen J. Finley Jr.

Work-Product Privilege Outweighs Broad Expert Discovery

By Madeline M. Sherry and Stephen J. Finley Jr. |

In Barrick v. Holy Spirit Hospital, 2014 Pa. LEXIS 1111 (Apr. 29, 2014), a divided Pennsylvania Supreme Court left in place a decision of the Pennsylvania Superior Court creating "a bright-line rule denying discovery of communications between attorneys and expert witnesses."

Dave Dambreville

Interpretation of Rule 1006 Expands Plaintiffs' Venue Options

By Dave Dambreville |

The choice of venue is a key strategic question in any litigation. In fact, there are few choices more important than that of determining where a lawsuit will be tried.


New Bill to Bring Changes to Medicaid Lien Recoveries

By Joshua Cohan |

Legal practitioners are well versed in the difficulties of resolving a lawsuit. One source of frustration in particular is the administrative burden of satisfying both governmental and private liens. In personal injury lawsuits, plaintiffs attorneys routinely deal with the problematic task of resolving Medicaid liens for their clients. Plaintiffs and government agencies regularly dispute what portion of a third-party liability settlement or award the state should receive when the state asserts its lien.

Judy Weintraub and Harrie Samaras

Training Corporate Business Managers on Dispute Resolution

By Judy Weintraub & and Harrie Samaras |

One of the largest time drains of corporate management today is dealing with disputes, whether internal or external to a company. Handling disputes can take as much as 30 percent of management time. Companies can significantly reduce this lost time by training their managers in two related areas: dispute resolution options and techniques. Understanding dispute resolution options or alternatives to litigation (ADR) can improve a manager's ability to manage dispute risks and to make more effective decisions about how to manage disputes that arise.

Joseph M. Kelleher

Revised ICDR International Arb Rules: What Counsel Should Know

By Joseph M. Kelleher |

The International Centre for Dispute Resolution (ICDR) was established in 1996 as the international arm of the American Arbitration Association (AAA). It is by far the best-known international arbitration institution of domestic origin and has reportedly outpaced peer institutions abroad in terms of caseload. Earlier this month, the ICDR announced revisions to its International Arbitration Rules, which are provisionally set to go into effect next month.

Early Identification of Trade Secrets Is the Best Defense

By Kenneth Racowski |

Trade-secret litigation poses a problem distinct from other types of intellectual property litigation. In litigation over patents, copyrights and trademarks, the asserted intellectual property is publicly filed and its specific contours are clearly identified.

Emile Ashe

Lessons I've Learned While Being a First-Year Associate

By Emily Ashe |

I write this article having officially completed, or as I might call it, survived, my first year as an associate at a law firm. Needless to say, it has been a tough year, full of change, hard work, and most of all, learning.

Charles F. Forer

Seeking Arbitrator Disqualification Before Arbitration Award

By Charles F. Forer |

Several months ago, Bob discovered an arbitrator in one of his cases had a business relationship with the adverse party. Bob was smart enough to know the arbitrator probably would be partial to the adverse party.

Shannon McClure Roberts and Molly Campbell

Proportionality to Replace Expansive Discovery in Rule 26(b)(1) Amendments

By Shannon McClure Roberts and Molly Campbell |

The proposed amendments to the Federal Rules of Civil Procedure, and specifically Rule 26(b)(1)'s proposed proportionality language, have been the source of much debate during the past year. The period for public commentary on the proposed amendments is now closed.

Madeline M. Sherry and Stephen J. Finley Jr.

Waiver of Attorney-Client Privilege Is a One-Way Street

By Madeline M. Sherry and Stephen J. Finley Jr. |

The attorney-client privilege continues to be a frequently litigated issue in Pennsylvania. In 2011, the Pennsylvania Supreme Court decided Gillard v. AIG Insurance, 15 A.3d 44 (Pa. 2011), which affirmed that the attorney-client privilege is a "two-way street" and confirmed that all communications between an attorney and the client are privileged.

Asher Brooks Chancey

A Nonbinding but Persuasive Foundational Text in State Court

By Asher Brooks Chancey |

More than 20 years have now passed since U.S. District Judge Robert S. Gawthrop III of the Eastern District of Pennsylvania handed down the seminal opinion on attorney conduct during depositions in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), and while its advices and admonitions remain instructive to this day, the impact of the decision upon attorney conduct in Pennsylvania is up for debate.

Abraham J. Gafni

When Do Superseding Contracts Impact Right to Arbitrate?

By Abraham J. Gafni |

Readers of this series on ADR in The Legal over past years have undoubtedly been struck by the strong presumption in favor of the arbitrability of disputes under both the Federal Arbitration Act (FAA) and the decisions of state courts.

Stephen J. Pokiniewski Jr.

When Are Physicians Liable for Injuries to Nonpatients?

By Stephen J. Pokiniewski Jr. |

Under Pennsylvania law, a physician may be held liable only under very limited circumstances for injuries sustained by nonpatients.

Charlotte Thomas

Grimes: Another Look at Reliance and Loss Under Pa.'s UTPCPL

By Charlotte E. Thomas |

The Pennsylvania Supreme Court is taking another look at justifiable reliance and "ascertainable loss" under Pennsylvania's Unfair Trade Practices and Consumer Protection Law (UTPCPL).

Will Sylianteng

Does Daimler Mark the End of Forum Shopping?

By Will Sylianteng |

Last month, if you had asked attorneys on the streets of Philadelphia whether they thought an action could be brought against Mercedes-Benz USA, the American distributor of Mercedes vehicles in the United States, in a Pennsylvania court for conduct occurring outside the state, most would have said yes. Last month, they probably would have been right, as Pennsylvania courts would have likely exercised jurisdiction over MBUSA based upon the substantial and continuous business MBUSA conducts every day in the state.

Formulating a Mindset to Achieve More Effective Arbitrations

By Harrie Samaras and Judy Weintraub |

While litigation and arbitration share many similarities, they also differ in several fundamental respects. With its streamlined procedures, arbitration offers significant time and cost efficiencies, as well as confidentiality, flexibility, less formality and greater control.

Miriam Barish

Landowners' Duty to Provide Security as Crime Increases

By Miriam Barish |

Violent crime is on the rise nationally in the United States, and is most prevalent in big cities, including Philadelphia.

Are Non-Appealability Clauses in Arbitration Effective?

By Charles F. Forer |

Bob knows arbitration can be a quick process. One impediment: those darn appeals. Even when he wins at arbitration (and he occasionally does win), Bob and his client still have to face petitions to vacate the arbitration award.

Are There Restrictions on the Arbitrator Serving as Mediator?

By Abraham J. Gafni |

The different roles of arbitrators and mediators are well recognized in dispute resolution.

Application of Truth Defense Not Always Straightforward

By Steven T. Voigt |

Even truthful statements can sometimes create a misleading impression. Take these two sentences as an example: "Company A's decisions were made in New York. Banker B, who represents Company A, is located in New York." Do these two sentences imply a different meaning together than they do apart? How about this statement: "The apple that he sold was not completely rotten." Is this a truthful statement if the apple was pristine?

Reviewing the Revised AAA Commercial Arbitration Rules

By Harrie Samaras and Judy Weintraub |

The American Arbitration Association (AAA) has revised its Commercial Arbitration Rules. The revised rules, which apply to any claim filed on or after Oct. 1, 2013, are designed to enhance significantly the efficiency of the arbitration process. For a full set of the rules, visit the AAA's website at

Proposed Federal Rules Will Discourage Document Dumps

By Michael Murphy |

A document dump—where a party responds to a document request by unfairly producing as many debatably responsive documents as possible in an effort to bury the opposition in paper—is one of the oldest of litigation discovery gamesmanship tricks.

When Are Arbitration Agreements Preempted by the FAA?

By Abraham J. Gafni |

Decisions of the U.S. Supreme Court in recent years have discouraged many parties from seeking to invalidate arbitration agreements on the ground that they are unconscionable under state law.

Joseph Fantini

Predictive Coding: Revolutionary or a Fading Trend?

By Joseph Fantini |

As members of the legal community continue to strive to provide the best possible value and service to their clients, solo practitioners and international law firms alike have recently begun turning to predictive coding in an attempt to increase productivity while decreasing the costs associated with document review and production.

At What Point Can You Seek to Disqualify an Arbitrator?

By Charles F. Forer |

Bob's client sold a portion of its business to Rabbit Corp. At Bob's urging, the client agreed to arbitrate any claims arising out of the sales agreement. A claim arose shortly after the sale.

Arbitration Clause Not Applicable to Wrongful-Death Claim

By Shayna Slater |

The mandatory arbitration clause: a term that sends chills down the backs of many plaintiff nursing home attorneys. If you handle nursing home cases you have surely been faced with mandatory arbitration clauses and have had to explain to families why it is unlikely that their case will be heard in a court of law.

Availability of Summary Judgment for 'Serious Injury'

By Michael Heyden |

The Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) created the "limited tort" option in this commonwealth, which limits a person who elects for that option from recovering non-economic damages, with certain exceptions.

Punitive Damages for Electronic Device Use While Driving

By Patrick McDonnell and Kailee Farrell |

Today, drivers increasingly utilize electronic devices while driving. While in the past a driver's attention may have been distracted by the radio, irritated children in the back seat, snacks and bulky paper maps, modern travelers confront a whole array of potentially distracting electronic devices.

The Vital Role of Graphics in the Courtroom

By Ron Kurzman |

Jurors expect information to be presented in a way that accommodates them. And with today's jury groups being composed of more Generation X and Y-ers - two groups that thrive in an environment where news and information are presented in a fast-paced, brief manner - it is imperative that information in the courtroom follows suit, or it will be lost on the audience.

Rules of the Game: Tortious Interference With Contract

By Kevin P. Allen |

Hardball tactics are common in business. Often, the law not only does not prohibit such tactics, it encourages them in the name of vibrant competition and efficiency. However, there are lines that cannot be crossed, at least not without creating risks of liability.

Mock Arbitrations: A Way to Fine Tune Your Presentation

By Harrie Samaras and Judy Weintraub |

You could have the greatest case, but if you don't present it effectively to the arbitration panel, you might not attain the results you want—or that your client needs.

Understanding Cost Accounting to Determine Lost Profit

By William E. Harris |

In many commercial disputes, the proper measure of damages is lost profits. Easily stated, the loss would be the profit that the injured party would have earned "but for" the alleged wrongdoing of the defendant.

Do Arbitrators Have Power to Exclude Relevant Evidence?

By Abraham J. Gafni |

Several articles in this ADR series in The Legal have pointed out that in agreeing to arbitration, counsel must consider whether the hearing is to be conducted pursuant to rules of evidence. Often ignored, however, is the extent to which the arbitrator will be constrained by such rules.

Preparing for Depositions in the New Age of Technology

By Melissa Fry Hague |

Cases these days seem to involve more paper than ever. While detailed documentation may generally be a good thing, it has also resulted in an additional seat at the deposition table just for all the documents.

Increased Protection for Expression in Public Schools

By John E. Freund III and Keely Jac Collins |

In B.H. v. Easton Area School District, the Third Circuit decided that, absent disruption, public school principals may not restrict "plausibly political" student speech or speech with a social message, unless the language is "plainly lewd." This article explains the importance, including the controversy, of the B.H. holding.

Does the Statute of Limitations Apply in Arbitration?

By Charles F. Forer |

Bob's client, Roger, came to Bob with a tale of woe. More than five years ago, Roger entered into a service contract with Alan. Roger completed the requested work, Alan paid the amount due, and the matter was over — seemingly.

'Proportional' Discovery Proposed for Fed. Civil Cases

By Joseph F. Rich |

The proposed amendments to the Federal Rules of Civil Procedure present not only a significant shift in the scope of discovery allowed in federal court, but also would usher in a new era of other limitations on discovery.

Are Time and Cost Efficiencies in Arbitration a Fantasy?

By Harrie Samaras and Judy Weintraub |

In many cases, the distinction between litigation and arbitration has become blurred as more litigation practices are infused into arbitration. Clients thus lose the cost and time savings that they sought by selecting arbitration in the first place.

Flexibility of Arbitrators in Shaping Creative Remedies

By Abraham J. Gafni |

Increasingly, attention has been drawn by courts and commentators to arbitrators' authority and the scope of awards they may issue.

But He Asked Me First

By William MacMinn |

In Marino, Robinson & Associates v. Robinson, Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr. entered summary judgment dismissing the case against a defendant who allegedly violated a nonsolicitation clause.

Premises Liability Claims That Occur on Recreational Areas

By Christopher Marzzacco |

Summertime. Time to watch a ballgame, take a walk in the park or a swim in the lake. Most of these activities can be enjoyed on public parks and on public lands. Unfortunately, sometimes visitors to these areas suffer injuries while engaging in these common summertime activities. If an injury was caused by a dangerous condition on the property, how does an injured victim overcome sovereign, local and the recreational use of land and water immunities afforded governmental entities to successfully make a claim for damages? If injured on property owned by a local or state agency, proving negligence and recovering damages is truly an uphill battle.

Right Time to Muddy the Waters Over Lien Stripping, Again

By Greg T. Kupniewski |

Recent news articles have proclaimed that housing prices are beginning to rebound. Even hard-hit locations like Las Vegas are reporting rising home values compared with last year. Despite this very welcome turnaround, many homeowners are not out of the financial woods yet.

Publicity Rights of Athlete Violated by Video Avatar

By Michael I. Rudell and Neil J. Rosini |

The right of publicity has traced a long arc since Hugo Zacchini, the human cannonball, was shot from a cannon in 1972. That year, a TV news report included Zacchini's entire act from ignition to landing without his permission; Zacchini then sued claiming that his right of publicity had been violated.