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.
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.
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.
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.
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).
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.
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.
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).
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.
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."
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?"
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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 www.adr.org.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Those of us who represent property owners are no strangers to dealing with local governments that demand exorbitant monetary concessions as a condition to approving our clients' land-use applications, including where the exaction has virtually no demonstrable connection with the proposed development.
Courts have been dealing with many of the challenges at the forefront of the social media debate for centuries. These include determining how to make sure jurors aren't prejudiced by outside information and how much litigators can learn about jury members prior to voir dire. These aren't new questions or challenges. They’re just being brought into sharper focus.
You are walking out of the bar association building when you hear your name. Turning, you recognize Jane, a senior litigator in the firm you recently left to start your own practice. She catches up to you and asks how things are going. You worked with Jane on several cases and respect her highly, so when she invites you to lunch, you accept.